Templates

This answer comes with many disclaimers, because the legal parameters of room access and rental at chartered libraries in New York is variable territory.  In other words: the answer can depend on the library’s “type” (set by its charter), its fundamental rules (found in the bylaws), its IRS status (the “501 (c)(3) mentioned by the member”), its day-to-day rules (controlled by policies), its lease (not all libraries own the space they occupy), and any deed restrictions (although deed restrictions on the basis of speech would bring concerns).

That’s right: education law, not-for-profit corporation law, tax law, real property law…this question has it all!

That being said, the member’s question centers on federal tax law; specifically, the library’s 501(c)(3) status, which not only makes the library tax-exempt, but allows it to receive tax-deductible donations.  This status is an important fund-raising asset, and its many conditions (including not engaging in politics) cannot be taken lightly.

Here is what IRS Publication 557, the go-to for creating a tax-exempt entity, has to say about political activity:

If any of the activities (whether or not substantial) of your [501(c)(3)] organization consist of participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for public office, your organization won't qualify for tax-exempt status under section 501(c)(3). Such participation or intervention includes the publishing or distributing of statements. Whether your organization is participating or intervening, directly or indirectly, in any political campaign on behalf of (or in opposition to) any candidate for public office depends upon all of the facts and circumstances of each case. Certain voter education activities or public forums conducted in a nonpartisan manner may not be prohibited political activity under section 501(c) (3), while other so-called voter education activities may be prohibited. [emphasis added]

Like many guides from taxing agencies, this one is superficially helpful (I put that part in bold), but upon examination, employs a disclaim that gives very little concrete guidance (I underlined that part).  So, what’s a library with a spare room to do? 

As alluded to in both the member’s question and my opening paragraph, this question doesn’t turn solely on the IRS.  Any 501(c)(3) library that rents or allows free use of space should have a robust “Facility Use Policy”[1] that considers not only IRS regulations, but safety, equal access, and operational priorities (requiring users to clean up after their meeting, to not be noisy, to respect the space).  For a library in a municipally-owned building, care must be taken to ensure use fees are applied in a way that does not violation the NYS Constitution.  And for a library that rents, the Facility Use Policy must harmonize with the lease.

But the member’s question is about 501(c)(3).  So, having established that this consideration is but one of many when giving access to or renting space, here are the three things to consider when a 501(c)(3) rents or gives access to space:

1)  Rental income needs to be a very small percentage of the library’s revenue. 

Section 501(c)(3) requires that income from renting space can’t outweigh donations and other sources of income related to the library’s tax-exempt purpose.  This is something to discuss with the library’s accountant; while rental income isn’t barred, it can bring funding ration and tax consequences that warrant the attention of a professional.

2) The use of the space can’t “inure” to the benefit of any one company or individual.

Section 501(c)(3) also requires that a qualifying organization’s resources can’t directly benefit any one person or entity more than the general public.  For example, free use of the spare room by a person conducting a stained-glass workshop with an admission fee (even a nominal one), can be considered an “inurement.” [2]

3)  As raised by the member’s trustee, the use of the space cannot violate the bar on lobbying (influencing legislation) and political activity (supporting a particular candidate for office).

And as reviewed, Section 501(c)(3) bars political activity (as further defined in the excerpt from 557, above).

“Ask the Lawyer,” has had some fairly large answers, but I don’t have space to address every occurrence that could run afoul of the bar on “political activity.” But what about renting space, on the same terms as to any other entity, to an event like the one described by the member?

Here is what the IRS has to say:[3]

Can a section 501(c)(3) organization conduct business activities with a candidate for public office?

A business activity such as selling or renting of mailing lists, the leasing of office space or the acceptance of paid political advertising may constitute prohibited political campaign activity. Some factors to consider in determining whether an organization is engaged in prohibited political activity campaign include:

a. Whether the good, service or facility is available to candidates in the same election on an equal basis,

b. Whether the good, service or facility is available only to candidates and not to the general public,

c. Whether the fees charged to candidates are at the organization’s customary and usual rates, and

 d. Whether the activity is an ongoing activity of the organization or whether it is conducted only for a particular candidate.

When developing a Facility Use Policy, if a library is a 501(c)(3) charitable organization, and wishes to be able to rent space to (among others) political organizations for event, the above-listed factors should be built right into the policy.

Here is some sample language (some of it will sound familiar):

As a 501(c)(3) organization, the NAME library does not participate or intervene, directly or indirectly, in any political campaign on behalf of (or in opposition to) any candidate for public office depends upon all of the facts and circumstances of each case. Therefore, the use of space in our facility by political organizations or for partisan political events is only available on the same rental terms as for the general public, and is subject to a rental fee that is charged equally to any political group or other individual or group.   NOTE: Certain voter education activities or public forums conducted in a nonpartisan manner may qualify for a fee waiver, just as do other free and open events conducted by a charitable entity for the benefit of the public.

So, what about the member’s scenario?   In the absence of a spot-on facility use policy, I suggest the following process:

1. Using the appropriate tax guidance, the library needs to decide if this particular “Meet the Candidates” event complies with 501(c)(3); in particular, is to be a “public forum conducted in a nonpartisan manner?”  Or is it skewed to benefit one candidate over the other? 

2. Is the sponsoring organization a charitable entity, or is there any risk that the terms for using the room would be an “inurement?”  Will donations be solicited?  Is money charged to enter?

3. If the answer to either shows a risk of violating 501(c)(3), then the library needs to consider if it wants to follow the formula to “do business” with a candidate for public office.  This would mean charging for the use as you would any other use.

If the library’s past practices make following those three steps too blurry, it is best to take a pass on this precise event, and take the time to develop an up-to-date and thorough Facility Use Policy that considers the types of uses the library will allow, and how and when it will charge for them. There are many good models out there to draw inspiration from, but before the board passes such a policy, it would be good to have it reviewed by a lawyer (who has ready the charter, bylaws, other policies, lease, deed, and any other relevant documents).

The member’s library is fortunate to have leadership that is thinking about both the first amendment and safeguarding the organization’s tax status.  Good work.  No matter what the final decision, awareness and commitment to these values serves your community.

 

On the surface, this is a simple issue: if people are using their cell phone for personal use on the job, a simple policy to stop the use should solve the problem, right?

Not these days.

As technology continues to transform the workplace (and the world), “cell phones away, please,” is not as easy as it once was.  People use their cell phones to monitor health, track their steps, and get emergency calls from kids at school.  Some may even use their cell phones to save their lives, serve as a witness to illegal activity, and exercise their right to free speech. 

Many of these functions depend on the proximity of the person to the phone (or the watch that connects them to it), and because of this, cell phones are becoming extensions of the people who own them.  So a policy to keep them stowed and away, or secured in a locker, can be met with resistance. 

Here are a few examples of how this “resistance” can play out on the job:

• An employee who is the parent of a child with Type 1 Diabetes may want their cell phone on them to keep an eye on their child’s glucose level[1] while the child is at school;
• An employee who being stalked by an ex may want the phone to record evidence to seek a protective order;
• An employee trying to lose weight per a doctor’s orders may be using a supportive app and a Fitbit;
• An employee may want to use their personal camera phone (“it’s better”) to take pictures for the library’s Instagram;
• An employee may need to text their partner to confirm who is picking up the kids, making dinner, and mowing the lawn before it turns onto a meadow;
• An employee may really love to play Candy Crush Saga® when things are slow at the reference desk.

As can be seen, many of the reasons to keep a cell phone on one’s person are compelling; other uses may not be.  And many of reasons/uses overlap with other library policies.

The goal, of course, is not to bar an employee from important connections and a tool for their well-being, but to make sure the use of personal electronics does not distract from the library’s professional environment and employee productivity (even on a slow day).  To achieve that, there are two broad solutions: 1) rely on a collection of policies to address the variety of purposes for personal cell phones while at work; or 2) create a catch-all policy. 

In a work environment where consistency for staff members is critical for professionalism and productivity, I prefer a combination of both.  What does that combination look like? 

It starts with policies for:

• ADA accommodations
• FMLA
• Domestic violence victims’ accommodations
• Workplace violence prevention
• Communications/media
• Use of technology
• Confidentiality of library records and patron privacy
• Employee conduct

…which should all allow for appropriate use of personal cell phones and electronic devices.  This doesn’t mean the policy has to mention cell phones specifically—just have enough flexibility to address them.

At the same time, assuming the above-listed policies harmonize with it, creating a specific “Policy on Use of Personal Cell Phones and Electronics,” as proposed by the member, can help employees and management navigate these issues in a rapidly changing world.

Here is an example of such a policy[2]:

[INSERT LIBRARY NAME] Policy on Personal Use of Cell Phones and Electronics

The mission of the [INSERT LIBRARY NAME] depends on employees maintaining a professional, productive environment. 

To maintain that environment, use of personal cell phones and electronics should only divert employees from work duties in the case of an emergency. 

To achieve this, cell phones and personal electronics should be stored in a carrier, purse, or pocket where the screen is not visible during work time, and watches synched with other electronics should not divert employees from work except during designated breaks in designated break areas. 

Sudden personal emergency needs that require use of a cell phone or other personal electronics should follow the established procedures for use of break time and personal time.

Use of cell phones and personal electronics for ADA accommodations, FMLA arrangements, personal emergency, and personal safety needs are exempted from this policy, and should be arranged on a case by case basis with a supervisor per the relevant policy. 

As with most HR policies, this one sounds simple, but can be complex to administer.  The need to be flexible and allow some cell phone use (especially ADA use, the basis of which may be confidential), can cause seeming inconsistency in enforcement.  To address this, employees must be sensitized to the fact that some people may depend on a personal devise for an authorized (and confidential) use, while at the same time be given the clear message that keeping in touch with social media and personal contacts during work time is not allowed.

As technology puts pressure on the norms of society, it is important to draw (and re-draw) reliable and clear boundaries…especially in the workplace.  So should a workplace have a policy on personal cell phones?  Done right, and with due consideration of the law, it can help.

Thanks for a timely question.

This question reminds me of a story told by writer/actress Sarah Vowell in her book, Assassination Vacation. 

When researching in Buffalo for the McKinley chapters, Vowell met a resident with scars caused by a childhood bike crash into a marker related to the McKinley assassination. 

I remember reading this passage and thinking (like any lawyer would): Hmm, who would be liable for that?  And of course, the answer to that liability lies partly in the question: Hmm, who owns this thing in the first place?

Unfortunately, finding the answer is not as easy as crashing your bike into a marker.

The solution starts out simply enough:  property that is “fixed” to land becomes a “fixture,” and title to it runs with the land.[1]  This is why when you buy a new house, the shed, patio, and built-in grill pit (but not the moveable grill) come with it.  And unless something provides otherwise, a historic marker on the property would belong to you, too.

The problem is, there are a lot of “somethings,” that could provide “otherwise.” 

In New York, most historic markers, if controlled by law at all, are controlled by local law (the New York State Museum maintains an excellent summary as to why on their “Historical Markers” page).  And under state law, cities, towns and villages may pass their own rules for designating, funding, and installing markers at historic sites.[2]

Meanwhile, many private organizations exist to support the site-specific preservation of history.  As the member points out, one of the major supporters of this effort is the William G. Pomeroy Foundation (“WGP”), which operated in collaboration with the New York Museum to promote projects to install signs at historic sites.  

As part of that work, WGP does not condition funding on ownership of the marker (quite the contrary)[3].  That is a typical approach.  However, other private funders could insist on some ownership and/or rules for maintenance—conditions that would be controlled by a contract, donor letter, or bequest. 

So, while a good default answer to “Who owns a marker?” is “Generally the landowner,” the only safe answer, before some research, is “It depends.” 

How can a museum, library, or other stakeholder in a local historic marker now what “it depends” on?  There is no one-size-fits-all answer, but here is a process that should help:

Step 1:  Confirm the ownership of the land the marker was installed on (who of course might not be the property’s occupant).

Step 2:  Confirm if any easement or other real property condition controls the area of the land with the marker.

Step 3:  Assess what federal state and local law(s), resolution, or permits (if any), controlled the installation. 

Step 4:  Assess what contractual obligations (grant document, donation solicitation documents, installation permission document, maintenance agreement,[4]  designer/creator document, etc), may relate to the marker.  

Step 5 (optional, but highly recommended):  Take an informal—but thorough—poll regarding who is emotionally connected to the marker, and develop a plan to consider their investment in what comes next.

I know that not all of these steps are easy to do, and that for a third party who was not involved in the installation, Step 4 might be impossible.  But it remains true: to assess the status of an historical marker, you need to know its history.   

As for Step 5…that is more of a “best practice” than a legal consideration.  Over the years, I’ve observed that before undertaking any action that could impact a monument’s physical condition, it is best to know who will write an angry letter if you disturb the patina (or worse, remove it—even if only for a temporary cleaning).  This includes not only owners, but those who feel a connection to and love for the memorial.  When in doubt, it is good to exercise diplomacy!  And who knows, they might chip in on the maintenance fund.

History, property law, and signage are all serious business. 

Thanks for a great question.

CODA

For those considering embarking on a “historic marker” journey, here is form to help make the archivists, librarians, museum directors, history buffs, and lawyers of the future grateful to you. Every project should have a one of these cataloged, and nowadays, perhaps out there in cyberspace.

The [INSERT NAME] Historical Marker Legal Abstract and Dossier

Sponsored by [INSERT NAME OF ORGANIZATION]

This form is for use when planning and generating a final file for the development, installation, and maintenance of an historic marker.  This project might not require all the items below to be completed.  When an item does not apply, enter “N/A” for “not applicable.”

 

Marker name:

Marker text:

[Attach picture of Marker]

Address of property Marker is located on:

Owner of property at time of installation:

Survey of property with Marker location noted: [attach after noting location on copy]

Attached signed copy of agreement with property owner:

          [if easement or other property right granted, attach]

Installation start date:

Installation completion date:

Insert Description of Maintenance Plan or attach copy of plan:

Is there any money held in trust or budgeted for future maintenance?  If so, please describe:

Federal law passed under:

          [Attach copy of law and, if relevant, resolution or permit]

State law passed under:

          [Attach copy of law and, if relevant, resolution or permit]

Local law passed under:

[Attach copy of law and, if relevant, resolution or permit]

Insert name and address of Funder 1 and attach copy of funding letter, grant contract, or bequest document:

Insert name and address of Funder 2 and attach copy of funding letter, grant contract, or bequest document:

Insert name and address of Funder 3 and attach copy of funding letter, grant contract, or bequest document:

Attach copy of any fundraising solicitation:

The Marker’s designer was:

[Attached contract with designer]

If there is a graphic, who owned the copyright?

The Marker’s fabricator was:

[Attached contract with designer]

Did the Organization’s board pass a resolution regarding the Marker?  If so, attach a copy.

Did the Organization enter into a collaboration agreement to organize and effect the Marker?  This would include a co-sponsorship agreement, an agreement to coordinate different aspects of the project, or an effort to coordinate property ownership, permissions, or endorsements of the project. 

If such an agreement was entered into, please attach.

Name of person filling out form:

Complete file with all attachments is located at____________________________.

 

 

VHS-to-digital conversion can open up options for accessibility under the ADA. 

Many people have treasured family memories they need to convert a more accessible format.

A converter can also help with the creation of critical and new works.

This converter will be a really valuable service for your patrons.  But your staff member is right to be cautious.

“Ask the Lawyer” has previously addressed the issue of libraries and patrons making copies under various circumstances (search the “Ask the Lawyer” archives).  In those previous answers, among other things, we reviewed the special rights libraries have to make and convert copies under Section 108 of the Copyright Act, which applies specifically to libraries and archives. 

Those previous answers cover some of the fundamental elements of this question.  They also each include a careful emphasis that patron duplication of audio-visual works (like movies) are mostly excluded[1] from the protections of Section 108, even when the copy is being converted from a medium that is obsolete. 

What does all this mean?  The staffer is absolutely right—commercial movies might be a resource patrons are eager to convert using the library’s equipment. . . And that could create an infringement a concern

Fortunately, Section 108[2] has a remedy for this problem.  So long as the converting machine displays a notice that “The making of a copy may be subject to copyright law,” the library will meet the requirements of 108 to avoid the imposition of liability for unsupervised patron use of the equipment.

The “unsupervised” requirement is critical, here.  If a patron’s use of the equipment is supervised by an employee, or the patron’s behavior makes it obvious that systematic infringement is going on, 108 might not apply[3].

So, a few things to help you be cautious:

1.When setting up the new equipment, select a place where patron privacy can be honored and employees can’t “supervise” the use of the equipment.

2) Posting “The making of a copy may be subject to copyright law” is a requirement to limit the library’s liability for a patron’s “unsupervised” use.

3)  Keep in mind that any obvious copyright violations (like someone stacking an entire collection of BBC miniseries next to the converter and generating multiple DVDs[4] of each one) should be promptly addressed through your patron code of conduct.

Which brings us to the final part of the member’s question: what language, both posted and in a code of conduct, can position a library to observe that last bullet?  Patron codes of conduct generally have copyright infringement sections, but if your library does not, a good start is:

The [NAME] library is committed to maximum content access through the Americans with Disabilities Act, Section 108 of the Copyright Act, Section 110 of the Copyright Act, and Section 107 of the Copyright Act (Fair Use).  However, use of library resources to generate or access copies beyond those rights cannot be supported by our library.  Although patron use of such resources is unsupervised, reproduction equipment such as photocopiers, scanners, 3-D printers, and VHS converters are all marked “The making of a copy may be subject to copyright law.” 

Any observable use of library equipment to access or make multiple copies in violation of copyright, trademark, or patent law is prohibited under this policy and will be addressed as a violation of this Patron Code of Conduct.

Thank you for this insightful question. I hope many weddings, graduation ceremonies, and birthday parties recorded in the 1990s find a new digital life in your library!

Library employees should not feel compelled to mediate the production of materials that target any protected category (including race), and in fact, feeling compelled to do so would risk potential illegal harassment of the employee.

There is of course a very fine first amendment and ethics line here.  A library cannot have a policy restricting access to library resources solely on the basis of viewpoint. However, if any employee considers the materials to be genuinely discriminatory (to themselves or others), they can report the behavior, and the library must take corrective action, including asking the person to desist the behavior.  This is because being compelled to view, help create, and handle such materials can create a "hostile environment" for the employee or patrons—or both.

To help create a balance between a patron’s right to confidential library services, access to resources, and the rights of employees and patrons to be free from a discriminatory environment, it is worth considering adopting a corollary to a library’s anti-discrimination policy, such as:

To ensure adherence to state and federal anti-discrimination laws, library resources (including staff assistance, production resources, and public areas) may not be used in a way that discriminates on the basis of age, race, disability, predisposing genetic condition, gender, sexual orientation, religion, national origin, race, veteran status, or domestic violence victim status. 

Examples of violations of this policy include, but are not limited to:

• Viewing discriminatory material in locations or on screens easily viewed by others
• Requesting staff help to print discriminatory material
• Using a library room to host a meeting that limits attendance based on a protected category
• Violation of a domestic violence victim's protective order

This policy works with the "Library Bill of Rights" and shall never be interpreted to deny or impede access to library collection materials or materials via inter-library loan.

Violation of this policy shall be considered harassment and concerns about the application of this policy shall be addressed through the library's discrimination policy and the library's [Code of conduct.]

Attention to matters like the question posed by this member is critical in 2019 (and beyond) because this year the NY Legislature greatly expanded the scope and control of the NY Human Rights Law (“HRL”).

The HRL is the state of New York’s mirror image—and significant extension—of several federal civil rights laws.  HRL has always barred discrimination on a number of enumerated categories,[1] but this year, the Legislature broadened it again.  So developing materials and training staff to balance library services with civil rights has only grown more mission-critical.

Thank you for this important question.

It's a musical double act at “Ask the Lawyer” today!

Libraries are hitting their stride as community centers and curators of cultural experience, so it is no surprise that live musical performances are being offered as part of their programming and outreach.

These two members’ questions arrived within one week of each other. 

The first question is like a good pop song: a straightforward premise, with an array of practical (but catchy) sub-questions. 

The second is more like the best jazz performance: concerned with the “notes that aren’t there,” and basically asking: “what could go wrong?”[1]

To address both submissions, Ask the Lawyer presents: “Ask the Lawyer Library Live Musical Performance Matrix,” and some additional guidance, below.

Copyright And Performance Factors	All songs composed by performers	Some songs composed by others (some “covers”)	All covers	Karaoke
Admission charged for profit	Chartered libraries in NY, and their supporters, should not be charging for access to events for a profit.	Chartered libraries in NY, and their supporters, should not be charging for access to events for a profit.	Chartered libraries in NY, and their supporters, should not be charging for access to events for a profit.	Chartered libraries in NY, and their supporters, should not be charging for access to events for a profit.
Performers are paid   (whether or not admission is free)	The contract between the performer and the library, Friends or other benefactor group should specify that all songs are owned by the performers, and ideally gives maximum rights to record the performance and use the footage to raise funds for the library.	The contract between the performer and the library, Friends or other benefactor group should specify that if the performance of songs owned by a third party is recorded, proper licensing was obtained by the performer or venue, and the performer indemnifies the library for any claim of infringement.	The contract between the performer and the library, Friends or other benefactor group should specify that if the performance of songs owned by a third party is recorded, proper licensing was obtained by the performer or venue, and the performer indemnifies the library for any claim of infringement.	The contract between the karaoke machine provider and the library, Friends or other benefactor group should specify any restrictions based on the license held by the provider.
No compensation to performers   AND   Admission is free	This group wrote their owns songs, and they are willing to perform for free?  They must love the library!  Just make sure your library also has a contract confirming 100% ownership of songs and addressing other priorities (see “contract” comments below chart).	Okay if performance of covers is not “transmitted”[2].   Just make sure your library also has a contract  addressing other priorities (see “contract” comments below chart).	Okay if performance of covers not “transmitted” to the public.   Just make sure your library also has a contract addressing other priorities (see comments below chart).	The contract between the karaoke machine provider and the library, Friends or other benefactor group should specify any restrictions based on the license help by the provider.
No compensation to performers;   admission proceeds are used to benefit library	They wrote their owns songs and all the proceeds are going to the library?    Super-cool performers.	Okay, so long as the performance of the covers is not transmitted to the public, AND no objection is received from copyright owner (unless they got and can show proof of a license).	Okay, so long as entire performance is not transmitted to the public, AND no objection is received from copyright owner (unless they got and can show proof of a license).	The contract between the karaoke machine provider and the library, Friends or other benefactor group should specify any restrictions based on the license help by the provider.
Wait!  Did we mention it’s an entire musical!?!	Your library knows a group that wrote their own musical?  That’s awesome.  Proceed…just make sure the contract has their guarantee that the work is original, spells out how the library can use the footage for fund-raising, and addresses the contract priorities listed below.	No performance without a license to the entire musical.	No performance without a license to the entire musical.	A karaoke musical?  So cool.  But definitely the contract with the karaoke machine provider needs to show an adequate license, even if it is not transmitted or recorded.
What if the news shows up?	Excellent. More exposure for a band with talent and originality, and for your library.	Excellent…more exposure for the group and the library.  Even if the crew snags some brief footage of a cover song, a reporter’s recording for purposes of a genuine news story is not a “transmission” of the type forbidden by 110(4).  But make sure your 110(4) criteria are well-documented.	Excellent…more exposure for the group, and the library.  Even if the crew snags some brief footage of a cover song, a reporter’s recording for purposes of a genuine news story is not a “transmission” of the type forbidden by 110(4).  But make sure your 110(4) criteria are well-documented.	My worst nightmare would be the news covering me doing karaoke.  But again, if the right licensing is in order, a reporter’s recording for purposes of a genuine news story is not a “transmission” of the type forbidden by 110(4).

There are a few things I am sure you’ll notice in this chart:

First, I keep mentioning having a “contract.”  No performance should be given in a library (or at a venue with sponsorship by the library) without a contract that confirms the date, performance fee (even if free), intellectual property considerations, public relations/promotion/image release, contingencies for cancellation, and clauses that address liability for any injuries or legal claims based on the performance. 

This need for a performance contract applies to any library arranging for a speaker, musical act, magician, artists or other third party (non-employee) to bring programming to your library.  For acts that bring risk (of alleged infringement, personal injury, etc.), the contract should require the contracting party to provide a certificate of insurance, and to indemnify the library for any damage caused by the performer.  

The contract does not have to be extensive, but it should cover the fundamentals listed above.  It can require that the performer obtain all necessary permissions, or can provide that performance licensing be covered by the venue (with a license from ASCAP or BMI).  A good general practice lawyer who handles performance and liability issues should be able to develop a template for your library (although even a good template will need to be adjusted from time-to-time).

Second, you’ll see an array of factors in the chart above, like “performer not paid,” or “it’s a musical!?!”  These factors are drawn from 17. U.S.C. 110 (4) (a part of the copyright law), which allows certain charitable uses of non-dramatic literary or musical works without a license.

Here is the complete text of 110(4):

[The following is not an infringement of copyright]

(4) performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if—

(A) there is no direct or indirect admission charge; or

(B)the proceeds, after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain, except where the copyright owner has served notice of objection to the performance under the following conditions:

(i) the notice shall be in writing and signed by the copyright owner or such owner’s duly authorized agent; and

(ii)the notice shall be served on the person responsible for the performance at least seven days before the date of the performance, and shall state the reasons for the objection; and

(iii)the notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation;

This section of the Copyright Act was crafted with just the members’ type of event in mind.  As usual with Copyright law (which giveth and taketh away, when it comes to fair use and other infringement exceptions) careful reading and careful attention to details is important before relying on an exception.  But if you document meeting all the factors, 110(4) is a great boon to libraries (and other charitable organizations and efforts).[3]

So as you see, with some careful attention to details, a show can go on.  Or as these slightly modified lyrics (fair use!) from the great Shannon (circa 1983![4]) summarize:

Let the music play.

But what’s the venue say?

If there’s a license you

Can play other people’s tunes.

 

Let the covers play

If your library doesn’t pay,

and don’t transmit your groove

Then the tunes are free to use.[5]

 

It is well established that a not-for-profit organization can benefit from volunteer labor.  This is true even when the labor brings the organization tangible benefits, like the money from a bake sale, or as in this case, a research fee. 

But when using volunteer services and charging a fee, a library (or any chartered not-for-profit) in New York must engage in a systematic analysis to ensure the arrangement is in step with numerous laws and regulations.  How can a library, museum, or archives do this? 

Follow the three-step process below.

STEP ONE

First, identify the services the institution would like to provide through volunteer labor. 

This is rather like writing a job description or hire letter.  An example based on the member’s scenario could look like this:

Research Volunteer

Under the general oversight of [paid position] in [department], the Research Volunteer performs specific research tasks related to personal requests by [institution] members and other users. These tasks are not to routine operations of [department], but benefit the public and [institution] by serving members and others in a way directly related to [institution]’s mission to [insert mission], as well as raising revenue in support of that mission. 

Your hours and participation as a Research Volunteer are voluntary, but we do ask that you work with [person] to coordinate your time; this will enable us to support your work, and keep things organized.  This work is a valuable service [institution] can only provide through the services of volunteers, and we thank you for your dedication and hard work!

The essential elements of this first step are:

• clarifying who is supervising/helping the volunteer;
• clarifying the tasks of the volunteer;
• specifying that the tasks are not routine duties of paid staff;
• confirming that the work is voluntary; and
• documenting that the work is directly related to the institution’s mission.

You’ll see why these are important in the Steps Two and Three!

STEP TWO

Next, check your organization’s founding laws, charter, founding documents[1], bylaws and plan of service (I call these “core rules”) for any terms that apply to the service you defined in Step One. 

Look at the laws and documents.  Is there something preventing the institution from charging a fee for this specific service?  Is there any cap on that fee?

This exercise will vary greatly from institution to institution, since many variables can impact what’s in the “core rules.”  Here are just a few examples:

A public library could never charge a member to borrow a book or to use the internet, because Education Law Section 262 requires that public libraries be free (to cardholders).

For a private library, its charter could contain an express rule that certain services must remain free—a restriction that might not be found in the law, but could be just as enforceable.  A similar condition could be in its bylaws, or a donation document.

And if an institution is a 501(c)(3), care must be taken to make sure the revenue generated by the service is “substantially related” to the institution’s not-for-profit mission, or the institution could risk having to pay “unrelated business income tax.”  The service should also be reviewed to ensure it is not an “excess benefit transaction” or a non-disregarded membership benefit.[2]  A mis-step on any one of these could have serious tax consequences.

When doing the “Step Two” analysis, it is ideal to confirm your conclusions with a lawyer.

STEP THREE

Once an institution uses Step Two to confirm it can charge for a service, it is time to return to your description from Step One and make it official, by putting the scope of work and details in a “Volunteer Letter.” 

Why so formal?  Because in recent years, the State of New York has cracked down on enforcement of quasi-volunteer, or just plain muddy, instances of volunteer labor at not-for-profit institutions.  This has even included examining perks and partial payments to volunteers!

Why is that?  While not-for-profit volunteering is unequivocally allowed, like anything, the system can be abused.  To avoid that, and to create clarity in these critical relationships, the New York Department of Labor has issued some pretty strict guidelines, such as:

Unpaid volunteers at not-for-profits may not:

• replace or augment paid staff to do the work of paid staff
• do anything but tasks traditionally reserved for volunteers
• be required to work certain hours
• be required to perform duties involuntarily
• be under any contract of hire by any other person or business express or implied
• be paid for their services, except for expense reimbursement

Sound familiar? This is where the work you did in Step One pays off!  By identifying the work as part of a “Volunteer Program,” clarifying that the service is offered through the hard work of volunteers (and never paid staff), and that there is no compensation to the volunteer, your documentation will be ready to show compliance in the event the Department of Labor audits your institution (which, from time to time, they do).

Final thoughts

Volunteers can be critical contributors to an organization.  If allowed by your organization’s core rules, a not-for-profit can absolutely benefit from the fruits of their labor.  By following the steps outlined above, and setting the relationship up carefully, a not-for-profit (and its volunteers) can reap great rewards.

The essential element of this is clear documentation.  A letter to every volunteer, stating their role, the rules of the position,[3] that it is not replacing or supplementing paid staff, and thanking them for their service, will position an organization to easily demonstrate compliance. 

A quick annual check with the institution’s insurance carrier, to make sure volunteers and their activities are covered by the institution’s insurance, is wise, too.

Thanks for a great question!

 

 

Draft and final Environmental Impact Studies (or “EIS”) must be accessible during the “public comment” period of a construction or remediation project.  After that, a library can discard them.

For readers who aren’t familiar with these documents: EIS are mandated reports that show the complete scope of possible “significant negative environmental impacts” certain types of projects can have.  They are produced by a project’s “Lead Agency” (generally a major figure in the project), who must ensure that copies of both draft and final EIS are made available to the public for a period of “public comment.” 

To comply with these disclosure requirements, the Lead Agency must both post the EIS on the internet, and provide a hard copy upon request.  As an alternative to providing on-demand hard copies, environmental regulations also allow the Lead Agency to place copies of an EIS “in a public library…,” where they must be available for viewing and copying during the public comment period (which is a minimum of 30 days, but can go much, much longer[1]). 

This “public comment” period is critical.  When done right, it enables clarity and transparency even when a project’s approvals span multiple agencies (like zoning boards, preservation boards, and a legislative body).  This allows the average citizen to provide timely comments about on things like environmental hazards, land use, historic preservation, and design.  So the role of the library in ensuring public access is valuable.

As the member’s question appreciates, EIS can have value even after the “public comment” period is closed.  Long after a project is complete, an EIS can reveal site conditions relevant to health and safety.  For professionals like urban planners, environmentalists, architects, and attorneys, the information in an EIS can be very useful.  And from the local history perspective, an EIS can show, decades later, what a village, town, or city perceived as a danger, asset, or cultural resource.  Coupled with building permits and variances, that information can show who was allowed to build what in a particular village, town, or city.  For this reason, I predict EIS will be important resources to the historians of the future. 

To assess if a printed EIS should be retained by the library, libraries can use their normal accession evaluation process.  One thing to consider in such an evaluation: the NY Department of Environmental Conservation retains copies of all EIS (in a manner that accords with the DEC’s own record-keeping policies).  Personally, I do think there is value in retaining the local hard copy, but as the member states, these things can take up a lot of room!

One thing that can make the entire process around EIS easier for a library is having an “EIS Acceptance Form” that is signed by the “Lead Agency” when they drop off the copies for required disclosure. Remember, use of the library is a courtesy that allows the Lead Agency to escape making numerous on-demand copies, so they should be very gracious about signing such an agreement!

I have supplied the essential elements of such a form below, and added a few non-required but library mission-centric terms to them.[2]   

The most helpful feature of this template form is the requirement that the “Lead Agency” notify the library that the public comment period is over; this way, a library can receive express confirmation of when the time to officially make the EIS available has ended, and the decision to dispose of or accession it can be made.

Thank you for this thoughtful question.

TEMPLATE EIS AVAILABILITY REQUEST FORM

The State Environmental Quality Review Act (“SEQRA”) requires that draft and final Environment Impact Studies (EISs) be posted on publicly accessible web sites by the “Lead Agency” for the project, and to provide hard copies on demand.

Regulations allow a lead agency to place copies of the EIS in a public library instead of making a large number of individual copies.  By filling out this form, you, as “Lead Agency,” are requesting that the [NAME] Library place ____ printed copies of an EIS for availability to the general public, and expressly authorize the creation of as many copies as needed by the public, to fulfill your disclosure obligations under SEQRA. 

Further Terms Agreed to By Lead Agency

As a condition of assisting with access during the public comment period, the ___  [insert number] physical copies provided by Lead Agency shall become the physical property of the Library, who shall have an irrevocable license to duplicate the EIS, in any medium now in existence or further developed. After being notified by the Lead Agency of the close of the comment period, the library may retain the physical copies, or dispose of them, at its sole discretion.

Lead Agency also hereby commits to remunerate the library for any request for a copy to be modified per ADA accessibility needs, including but not limited to conversion to braille, large print, or for use with an electronic reader.  Such copies shall remain the property of the Library.

Lead Agency will notify the library via an e-mail to [ADDRESS] when the EIS is no longer required to be available for public comment and duplication.

The Lead Agency employee or agent signing this EIS AVAILABILITY REQUEST FORM is an authorized signatory of the Lead Agency.

LEAD AGENCY:___________________________________

CONTACT AT LEAD AGENCY: ___________________________________

TITLE OF CONTACT: ___________________________________

PHONE NUMBER: ___________________________________

EMAIL: ___________________________________

PROJECT NAME: ___________________________________

PROJECT ADDRESS(ES): ___________________________________

PUBLIC COMMENT PERIOD START DATE: ___________________________________

PUBLIC COMMENT PERIOD END DATE (if able to be determined): ___________________________________

 

SIGNED ON THIS __________ DAY OF ____________, 20_____.

SIGNATURE:__________________________

PRINT NAME:__________________________

TITLE:____________________________________

 

[NOTE: Any template form should be reviewed by a library’s attorney for conformity with charter, bylaws, and current policy]

 

Before we get to the nitty-gritty on this question (and we will), let’s reflect on why libraries charge fines and replacement costs in the first place:

• To encourage timely return of materials
• To offset staff time and resources consumed by retrieval efforts
• To replace items when retrieval efforts are ineffective

And always, lurking in the background, is the notion that fines and replacement costs are an alternative to the most under-utilized section of the NYS Education law, the criminal provision in Section 265:

Whoever wilfully detains any book…belonging to any public or incorporated library…shall be punished by a fine of not less than one nor more than twenty-five dollars, or by imprisonment in jail not exceeding six months…..

So far, I have not had a client use their “one phone call” to let me know they have been arrested on an “265,” but the possibility is never far from my mind.

Of course, no one picks a library career to pursue their dream of arresting people who love (and lose) books.  And, although less draconian, I bet no one picks a library career for the joy of assessing late fees.  That said, library materials costs money, and people can be irresponsible about returning items to the library.  So what’s an institution to do?

Some libraries are experimenting with no-fine models[1], since fines can have a disproportionate impact on those in poverty.  Others have great success with routine “amnesty” days and other creative ways to take the sting out of returning books late. And still others want to make sure that the traditional model is as streamlined and legally compliant as possible.  That is what the member’s question is about.

A “bankruptcy discharge policy” is a logical component of a library’s approach to fines, replacement costs, and efforts to collect them.  It addresses the potential “dischargeability” (wiping out) of library fines when a person seeks the protection and “fresh start” created by bankruptcy.  It can also help libraries (and their collection agencies) follow the law, which gives people seeking bankruptcy very specific protections.

Before we address the member’s specific questions about adopting such a policy, it is important to take a moment to reflect on (legal) language.  This is because there is a basis to argue that overdue fines and replacement costs, while valid conditions of having a library card, might not qualify as typical commercial “debts;” this could mean that in many cases, libraries owed fines and replacement moneys might not be precisely “creditors.” This is pointed out in the 1997 case Riebe v. Jeurgensmeyer[2], where the judge writes:

The origin of this federal case is a minor's failure to return a library book. In 1995, Elizabeth Riebe, a minor, borrowed a library book from the St. Charles Public Library ("the Library"). The due date came and went without Ms. Riebe returning it. The Library waited. After Ms. Riebe failed to return the book for six months, the Library retained Defendants [a collection firm] to write to her parents ("Plaintiffs") requesting payment of $ 29.95. 

Addressed to Plaintiffs, the letter, as Plaintiffs see it, implied that they, or their daughter, could be arrested and imprisoned for intentional theft of public library property. Attached to the letter was a copy of the provisions of the Illinois Criminal Code. Rather than paying the $ 29.95 or at least returning the book, and thereby putting the matter to rest, Plaintiffs filed a complaint in federal court, alleging that Defendants' letter violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq.(1996).

In ruling that the FDCPA doesn’t apply to attempts collect library fines (and thus that the library could not be liable for the zeal of their collection agency under the FDCPA) federal Judge Charles R. Norgle (who clearly esteems libraries) wrote:

Here, there was no initial "business dealing" creating an obligation to pay, only an obligation to return a library book. In theory, this may have created some type of contract, but not in the context of a "business dealing" as contemplated by the FDCPA, e.g, the purchase of consumer goods or services. … Rather, the borrowing of a library book is a public privilege that largely depends on trust and the integrity of the borrower. [emphasis added]

Now, the FDCPA is not the Bankruptcy Code, and it is possible that a person seeking relief from debt under the Code and might be able to reduce or completely discharge their fines and replacement charges from a library.  But for over twenty years, Riebe has been cited as good law, so it is possible that this view of library fines and replacement costs as something more fundamental that a business debt could carry over. 

I emphasize this because it means some types of library fines and costs might be dischargeable, but others, since they are not consumer “debt” in the traditional sense, might not.[3]

So, with all that, let’s get to the nitty-gritty:

Are replacement costs for library materials exempt from or subject to discharge of debt? Overdue fines?

Because of the factors cited above, there can be no one-size-fits all answer to this!  It will depend on a few factors.  Under certain circumstances (replacement costs, fines connected to vandalism or wanton theft) the court might rule that what’s owed to the library is not a “dischargeable” debt.  But that might not be the case for the average family declaring bankruptcy because they got swept at the knees due to illness or job loss, and who might have additional hardships to show to the court.  As with many things in bankruptcy, it will depend on the circumstances.

Fees levied in an attempt to recover materials (i.e. collection agency fees)?

I would argue that imposing additional administrative costs for retaining a collection agent risks transforming the library-patron relationship described so well by Judge Norgle in Riebe.  In doing this, the likelihood of the costs being dischargeable increases.  But again, it will depend on the underlying nature of the fine or cost.  Someone who checked out 10 DVD’s on their first week as a cardholder and never returned them might have a tough time proving that the costs aren’t the result of theft (and thus non-dischargeable).

Are we allowed to impose restrictions on borrowers whose debt has been discharged, if they have not returned materials owned by the library? For example, can we deny loans to a borrower until they return library materials, or pay for them, if the debt has been discharged; or can we limit the number of items loaned for a period of time?

Regardless of where your board may fall on its philosophical approach to fines and collections, any time a cardholder declares bankruptcy, all efforts to collect fines or replacement costs should cease.  Critically, this means if borrowing privileges are only suspended due to unpaid fines, borrowing privileges should immediately be reinstated.  On the flip side, suspension due to unreturned materials (for which no replacement cost is being charged) can continue. 

The most important thing, as the member suggests, is to respect the process when your library is notified of it. Any library, or agent of a library, who gets a notice that a cardholder is filing bankruptcy should cease all financially-related sanctions.  If there are extenuating circumstances (let’s say the amount owed is related to an act of vandalism, or failure to return 50 full-color art books) refer the matter to library’s attorney, or alert the bankruptcy trustee, who might contest discharge under the precise factors of the bankruptcy code.

With all that in mind, I suggest some alternative language for a policy, which would addresses both the human aspect of bankruptcy, and some of these subtleties:

Bankruptcy Discharge Policy

The Library understands that sometimes people must seek relief from debt in bankruptcy and are entitled to a “fresh start” after such relief is obtained.

Procedure

Cardholders seeking a discharge in bankruptcy of moneys owed to the library should notify the library of having filed for bankruptcy.

Once the library is properly notified that a bankruptcy has been filed, the library and/or its agent will immediately cease contacting the cardholder about the financial amount(s) owed. 

The library shall then evaluate its response to the notice.  In making such an evaluation, the nature of the conduct leading to any fines, costs, and suspended privileges will be considered.  In particular, but not exclusively, the discharge of any costs related to wanton destruction or significant failure to return borrowed items may be contested.

After notice of filing, but prior to discharge, if borrowing privileges are suspended solely on the basis of unpaid fines and replacement costs, borrowing privileges will be immediately reinstated; borrowing privileges suspended on the basis of unreturned items, for which no replacement cost is sought, will remain suspended.

To ensure all charges are listed on the bankruptcy schedule, the cardholder or their attorney may contact the library to request a statement of account at any time; such contact must be in writing so there is no risk of the library appearing to have violated the bar on collection activity.  An attorney or trustee requesting this information on behalf of the cardholder must include permission from the cardholder as required by CPLR 4509.

The library supports that people seeking relief in bankruptcy are entitled to a “fresh start” after the discharge of debt(s).  Upon presentation of a “Discharge of Debtor” listing the library, all moneys owing shall be removed from the cardholder’s record, up to the date of discharge, for the cardholder and any minor children in the family. 

Further, if replacement costs are discharged, the library will not regard the failure to return the corresponding item as a basis to bar reinstatement of borrowing privileges.

Late returns or losses after the date of discharge will be subject to routine policies, including fines and suspension of borrowing privileges.

This approach both maximizes the potential for a bankruptcy discharge to be the compassionate re-set of the cardholder’s account it is intended to be…while taking into consideration that not all charges might be worthy of discharge (which is up to the bankruptcy court to decide).

Thank you for this careful question.

 

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[1] A topic discussed in an interesting TED talk by librarian Dawn Wacek.

[2] United States District Court for the Northern District of Illinois, Eastern Division, October 31, 1997.

[3] The member’s question states that the library is a “government entity,” an assertion that is potentially relevant under the Bankruptcy code.  Without making this response pages longer, I will simply state that I don’t believe a public library has quite the same status governmental entities do under the Bankruptcy Code; however, as shown in Riebe, libraries can occupy a unique position that should inform their approach to this issue.

 

A new library building!  How exciting.  And what a huge additional array of additional duties it presents, as the library begins to think about moving.

Transitioning library space is a huge undertaking.  And when it involves selling the legacy structure previously occupied, the task can get even bigger.

Here are just a few of the plot twists I have run into during real estate deals involving old buildings:

• We found out that the building wasn’t actually owned by the library (it was owned by the sponsoring municipality);
• We learned that part of the parking lot the owner had used for over twenty years wasn’t actually on their property (it was on their neighbor’s);
• The inspection showed that the building had a ruptured sewage line and had, for decades, been wallowing in its own filth, causing major foundation issues;
• We verified there was friable asbestos in all the wall plaster;[1]
• We imposed a restrictive covenant requiring the original floorboards to never, ever be removed (also called a “preservation easement”);
• We discovered a secret underground tunnel.[2]

Why am I setting out this litany of events, when the member just wants to know if there are any posting/bidding/process requirements when a Special Legislative District or “SLD” public library sells a former building?

I mention them because every real property transaction—no matter what type of library is involved—is different.  And while the base requirements to transfer the building are actually very simple (we’ll get to them soon), the lurking contingencies can create painful extra “required” steps if not addressed well before the sale.

So, before I confirm the one step that absolutely must be taken, here is the “Ask the Lawyer: Basic Factors for Painlessly[3] Selling Your Library Building.”

Sale Factor	Why You Consider It	What You Do With It
1. Your Library’s CHARTER	Your Charter may list the location of your current building.  So before you move or move to sell the structure, make sure the details aren’t at odds with anything in your founding document.	Okay, this is very important: Start a folder or a file on a shared drive. Going forward through this list, we’ll call this your library’s “Sale File”.    The “Sale File” is going to contain everything your library needs to gather to anticipate complications and get your legacy property ready for sale.
2. Your Library’s BYLAWS	The bylaws may reference the library’s location, and more importantly, they are the key to a board resolution authorizing the sale.	Put the bylaws in the Sale File.    Your lawyer will prepare the resolution the board must pass to authorize the sale of the property based on what’s in the Bylaws.
3. The DEED to the property.	The deed is proof that your library owns the property; it is also proof of the exact boundaries of what is to be sold.	Put the deed in the Sale File.   If you can’t find it, DON’T PANIC, you can get a copy from your County Clerk.[4]
4. The SURVEY of the property.	The survey is a precise measurement of the property.  It is also a nice picture of the property, and shows important things like the exact acreage, and where your fence (if you have one) is.	Put the Survey in the Sale File.   If you can’t find it, DON’T PANIC, but alert your lawyer (see more on that below) because you’ll need one, and it will be an expense related to the sale.
5. Any DONOTION DOCUMENTS or CONTRACTS that the property is controlled by.	Your legacy building[5] may have conditions on the ownership.  This is a huge variable and it is important to address or rule in or out right away.	If you have any DONATION DOCUMENTS or CONTRACTS related to the building, put copies in the Sale File.    It will be the job of your lawyer to affirmatively rule out any donor direction or contract conditions controlling the property, but they can’t deal with what they aren’t aware of.
6. Any LIENS or MORTGAGES on the property.	Your legacy building may have been used to secure a loan, or perhaps a sub-contractor has a lien related to a contract dispute.   If a valuation of the property was conducted as part of a loan, that should go to the lawyer, too.	These also need to go in the Sale File.  But generally, these are public documents, and can be obtained at the County Clerk’s.  And if you don’t know about them, don’t worry: it will be the job of your lawyer to affirmatively rule out any “burdens” on the property (although the library will likely have to pay them off).
7. Any DEFECTS or DANGEROUS CONDITIONS the property has.	Hard-working, older legacy buildings can have problems, and your library’s awareness of any defective or dangerous conditions will likely have to be disclosed as part of the sale.    This is best planned up-front.	Once you have a lawyer for the sale, work with them to discuss any awareness the library has of lead paint, asbestos, mold, or any other conditions of concern.  Although certain conditions must be disclosed as part of a sale, this initial discussion should be done during a consultation that is protected by attorney-client privilege.
8. The building’s ASSESSMENT.	Chances are, as a non-tax-paying entity, your library has not paid much attention to its assessment.  However, if the sale is to a non-exempt party, this number is going to get relevant.  It is good to consider that factor up front.	Yes, it goes in the Sale File.
9. The Library’s LAWYER	In the boxes above, the word “lawyer” appears more times than the rules for good writing allow (for pacing and to avoid being repetitive, I should have said “your attorney,” and “your legal counsel”, but I wanted to make a point here).    I trust you see the pattern that is emerging: real property transactions are complicated (we haven’t even gotten to the library and not-for-profit-specific stuff yet) and the sooner a knowledgeable attorney is assessing the transaction and making sure the library has addressed any contingencies, the better.   (NOTE: now that I have made my point, I will use synonyms for “lawyer”).	An attorney retained by the library to handle this transaction should bring the following to the table:   1. They should have handled at least three other transactions involving the transfer of real property owned by a not-for-profit;   2. They should provide the library with a retainer letter that quotes not only the rate for the closing (usually there is a “range” in a particular area), but the hourly rate for work on things like your bylaws resolution, dealing with any lingering concerns, etc.   3.  The attorney should be asking for the items in the “Sale File” (and more) if they don’t have them already.   The board should not be afraid to ask for proposals and to comparison shop!
10. The library’s REAL ESTATE AGENT	This person should only be appointed after you determine your lawyer (if appointed at all).  If your library does use a licensed realtor, they should be selected for both their previous experience with similar properties, and their ability to productively cooperate with the library’s attorney.	The real estate agent should also be under contract (a contract first examined by the library’s lawyer) and the library should never agree to the agent serving in a “dual” role for the seller (the library) and the buyer.
11. A VALUATION of the property	As fiduciaries of the library, your board owes it to the institution to work for the best possible price (unless the property is to transfer in something other than an “arms-length transaction”; more on that later).  This means their vote to sell should be backed by reliable information, provided to the board without bias, and based on professional credentials.	The board should consider the valuation, along with the input of the lawyer and the real estate agent, prior to resolving to accept a contract of sale.
12. If relevant, the building’s LANDMARK status or location in a designated historic building, and any documents pertaining to its HISTORY.	This can impact the use your buyer can make of the building, and can also impact the costs of rehabilitating or renovating it.	Marketed properly, historic status is a benefit.  But you have to find the right buyer.  It is a big factor to plan around.

 

Once you’ve assembled the “Sale File,” the attorney retained to assist the with the sale will be able to help the library chart a path forward.

Why do I keep emphasizing the early involvement of an attorney?  One look at all the variables created by the factors in the chart above (and my bullet list of “interesting” contingencies) shows why the early involvement of a lawyer is necessary. 

Now, at this point the astute reader will probably say: “This is a great chart and all, Ms. Lawyer, but are you really answering the member’s question?  They asked about required steps for the sale of a special legislative district library.”

The reason the chart (partially) answers the member’s question—or rather, positions someone to answer it—is because, based on the variables listed on the chart, there may be numerous steps required in the sale. 

But what steps—no matter what—are required?

For a library whose building is not owned or controlled by a village/town/city/county,[6] the sale is governed by a combination of the Education law, and the NY Not-for-Profit corporation law, which empowers a library’s governing board to acquire and dispose of library assets[7] in a way that best stewards the overall well-being of the library.[8] No public posting or precise bidding process is required. But there is one thing:

No matter what—the board will need to pass a resolution approving the sale…after receiving sufficient information to show they have examined the sale terms and made a decision in the best interests of the library.

How do you show the contract terms are in the library’s best interest?  By considering them in light of the library’s overall position, and the factors in the Sale File.

Now, with all that being said, I do have to emphasize an important distinction: the transfer of a library building is different than the transfer of an entire library. The transfer of an entire public library as a “going concern” may be subject to a municipal vote, which is allowed by Education Law Section 266.  But, as ruled in 1992 in the case of  Briody v. Lewiston[9], Section 266 does NOT apply to the sale of only the library’s building.

The Briody case, by the way, is a great example of why a library sale requires careful legal planning.  In that instance, the library conveyed its legacy building “pursuant to an agreement entered into in 1972, which provided that, if the Library moved to another location, it would convey its property to the Town and Village, which could dispose of the property for any purpose.” On the chart I provided above, this type of “Briody contingency” would be caught by a combination of factor 5, addressed by factor 9.

The good news is, when a library has already gone through the intricate dance required to fund, plan, and contract for a new building, they likely already have an attorney “briefed and ready” to assist with the sale of the old.  That attorney will also be in the position to help the library plan for contingencies that could delay the move (such as—shudder—complications during construction).

So, what steps get you to that board resolution, and a smooth process?  Assemble the Sale File, ask your attorney out for a stroll, and start planning a sale the board members can vote for with full confidence that they are making the best decision for the library.

Best wishes for an easy Certificate of Occupancy, a smooth transition to the new building, and a sale that shows the trustees are formidable fiduciaries!

 

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[1] Man, they used to put that stuff in everything but breakfast cereal.

[2] SO COOL.

[3] Okay, I can’t promise it will be painless.  But think of this as the difference between working out regularly and running a 5K without training.

[4] I probably don’t need to tell an audience of librarians what a great resource a county clerk can be.  For instance, the Madison County Clerk has this great resource for finding deeds on their website: https://www.madisoncounty.ny.gov/DocumentCenter/View/152/How-to-Obtain-a-Copy-of-Your-Deed-or-Mortgage-PDF?bidId=

[5] I love buildings, especially when they ooze history and charm (sadly, this also means they might ooze lead and asbestos).  When a cultural institution is transitioning space, I often call the “old” building the “legacy” building.  It’s a way of saying “We’re looking to the future, but we honor the past.”

[6] Municipalities have to follow an array of “highest bidder” or return-on-investment rules, and yes, there will be some requirements on the process, too. But when those apply, it is not a sale by a public library, it is a sale by a municipality.

[7] Except for books.  There are special rules on those (Education Law Section 226, the same law that gives library trustees authority over property).  And of course, any assets governed by special grant terms or a donor contract.

[8] Unless the board is selling the building AND closing the library, or disposing of “substantially all” of its assets.  THEN you need permission of either the NY Supreme Court or the NY Attorney General for the sale.  But happily, that is not the situation here.

[9] 591 N.Y.S.2d 909, 1992 N.Y. App. Div. LEXIS 14855, 188 A.D.2d 1017