Public Libraries

For those who need a little background: a “First Amendment Auditor” is a person who visits (generally) public institutions demanding information that may or may not be available under the Freedom of Information Law (FOIL), often while making broad claims that the First Amendment allows them to engage in intrusive filming and interrogation of employees.

Because their endeavors are usually commercialized on a streaming or video platform, many “First Amendment Auditors” use tactics to create inflammatory and schadenfreude-laden footage of their encounters. After all, who wants to watch a respectful (and thus boring) tour of the new Teen Room?[1] Show us where you hid the payoff to the contractor!

For many years now, I have encouraged libraries to reject the “First Amendment Auditor” label and reframe people engaging in such activities simply as “People Recording in the Library” (“PRILs”). This is because such people—until their behavior crosses a line[2]—have the same rights as any third party who wants to visit the library, learn about it, and either take pictures or film while they are there.

In fact, to treat them otherwise risks a violation of the First Amendment and possibly a few other things!

Because this gig has been trending for a while, the Empire State Library Network conducted a webinar on the subject in 2022 (the slides are available here as a PDF) and published a template Policy and Protocol on Recording in the Library.

The above questions submitted by the member library revising its recording policy are a practical follow-up and provide a chance to show how other policies can work in concert to help manage the concerns caused by the more extreme PRILs. So, for those of you who want a PRIL 101 grounding in this issue before delving into these 301-level questions, check out the links above.

And now, let the 301-level questions begin!

QUESTION: Are staff required to give their first and last names (or any name) to an auditor or member of the public on demand?

ANSWER: No, unless the library has a policy requiring it (such as for name tags to be worn and visible at all times). There is NO state or federal law or regulation that compels a public library employee in New York State to provide their name or other personal information on the spot.

SIDE TIP: A library’s Workplace Violence Prevention Policy should address harassing or threatening demands for information about employees, volunteers, and patrons.[3]

QUESTION: Is photographing and videotaping members of the public in the library without their consent permissible?

ANSWER: A library’s code of conduct should have a broad prohibition on the use of recording devices that can jeopardize the privacy of others. For example, “The ABC Library prohibits the use of technology that risks impeding the private use of the Library by others.”

Policies can also broadly prohibit photography and videography inside libraries; see the answer to the next question for examples.

QUESTION: Is photographing and videotaping in the library allowed “only when consistent with the nature or purpose of the facility (during programming, etc.) or “at the discretion of the Library Director”? Our current policy language reflects this, and it isn’t clear whether this is legally sound.

ANSWER: 100% NO; such a policy is a recipe for disaster.

Instead, a public library should have a clear baseline policy (with photography and videography either allowed or prohibited) and areas that depart from this policy should be marked with clear signage.

For example: “To protect patron privacy and a welcoming environment, the ABC Library is a “no recording, no photography” zone, except for in the Community Room, in the outdoor areas, and for Library events whose attendees grant permission.”

For another example: “Celebrate the Library! We love it when people take photos, stream, and record at our Library. Patrons may even take pictures of library materials to capture information they need for research. However, for patron privacy, the following areas are “no recording or photography” zones: The Reading Room, the Stacks, the Reference Desk, and the Circulation Desk. Recording and photography in those areas is a violation of our Code of Conduct and can result in loss of library access. Please respect this rule!”

Again, clear signage, so people are on notice, is important.

SIDE TIP: To the greatest extent possible, public libraries should avoid things perceived as library service or access being allowed per the “discretion” of the Director. Rather, there should be a baseline rule and a set process for when that rule can be modified. For example, “Recording is forbidden in the Library’s Children’s Room. Those wishing to film a story hour or other event should submit a written request to the Library, and the Library Board will consider a contract for special permission.” The criteria for granting such a request should be uniformly applied.

QUESTION: What exactly can a 1st Amendment Auditor film or photograph?

ANSWER: PRILs can film/record/stream/photograph any area of the Library where they are allowed to engage in such conduct. Again, it doesn’t matter if the person recording is a first-grade teacher with their class, a group of teens doing a dramatic reading of “Emily Wilde’s Encyclopedia of Fairies,”[4] or a cranky person complaining that the couch is dirty; the filming rules should be the same for all.[5]

This brings us back to policy and signage. Any area where the general public cannot go (Director’s office, staff break room, utility closet, etc.) should be clearly designated and—whenever possible—locked.

The flip side of this question is of course: What can PRILs argue they have a right to see?

Any area where a person can take a photo in the library is a place where a PRIL can record. To gain access to restricted area, however, like the mechanical room,[6] the PRIL would need a subpoena or special permission.

QUESTION: Are permissions for these activities different for members of the media; both commercial and independent, self-identifying journalists or media organizations?

ANSWER: This is the true 300-level thinking. As can be seen above, the answer is: NO.

That is the wonderful thing about our democracy. A citizen journalist is born the moment a curious person wants answers.

Of course, a trained reporter tied to a “real” paper (with things like journalistic ethics, editors, and a desire to avoid defamation suits) will often ply their trade more gracefully.

As I write above, a library can pick and choose when it wants to grant access to restricted areas.

For example, if a library is about to start a capital campaign, it could invite a “real” journalist to show the community the need for costly construction. It could also invite a local streamer who they know has a big local audience.

Granting either of these people access to the basement would not mean that suddenly the area is unrestricted and that any person with a camera can come take pictures of the crumbling mortar!

The important thing is that when a library designates restricted areas, unrestricted areas, and which of those areas can be recorded, there is a rational basis that would withstand scrutiny.

At a very small library where the circulation desk and everything else is all within view, a blanket ban on recording to protect patron privacy is easy to justify. At a larger library with areas where recording could be allowed, the board may need to think more deeply about the policy.

The other critical thing is consistent enforcement of the rules. If a library is routinely allowing one person to record and not another, the person denied equal treatment may have a case against the library. It is important to be fair.

It is also important to train library workers and volunteers who might be confronted by an aggressive PRIL on maintaining their cool and using de-escalation. There is more on that on the Ask the Lawyer’s First Amendment Audits on Youtube.

Thank you for an excellent set of questions!

There are five types of people I imagine avidly reading this answer:

1. Leaders of school district public libraries;
2. Leaders of school districts with a school district public library;
3. Attorneys serving such leaders;
4. Journalists assigned to the rough-and-tumble school district election beat;[1] and
5. Library nerds.[2]

Considering the audience, I will answer the questions plainly and thoroughly.

But first, some background.

When it comes to elections and voting, a school district public library has several paths it can take:

• It can hold its own election and initial budget vote or have its district hold the election and initial budget vote;
• If a budget is defeated, it can conduct a re-vote (there is no option to force the district to hold a re-vote); and
• It can have its district conduct a vote to provide land and/or issue bonds for acquisition and construction of library facilities (the library cannot hold this vote itself).

This answer is not going to map out all of those paths, because that would turn this answer into a manual (and there’s already a manual[3]). We’re just going to answer the member’s questions as they relate to the paths.

Is there an entity that has oversight of our elections?

For school district public libraries, the ultimate decision-maker regarding contested elections and school district budget votes is the New York State Commissioner of Education.[4]

Where can we direct questions from the public to receive solid answers?

There are three resources to refer people to.

The first is the excellent body of searchable decisions by the Commissioner of Education.[5] People with questions should check this searchable resource to see if their questions have already been addressed by the Commissioner.

The second is the New York State Education Department (NYSED) “Formal Opinions of Counsel.”[6] In this resource, the NYSED Office of Counsel answers questions submitted (ideally before there is a dispute requiring a decision by the Commissioner).

The most recent “Opinion of Counsel,” issued on October 16, 2024, shows the minute and exacting level of detail that NYSED lawyers are willing to provide guidance on:

Given the board’s interpretation, I find that it would be anomalous to impose a notarization requirement for school board elections. As such, voters who complete affidavit ballots in a school election cannot be required to have their signatures notarized. Any Departmental guidance to the contrary should no longer be relied upon.

Be warned that this is not the most easily searched resource, so if you’re a librarian, be ready to help people seeking these kinds of answers.

The third resource is through writing to the NYSED Office of Counsel at legal@nysed.gov to ask a question. As you can tell by the above quotation, they don’t mind getting into the weeds, so don’t be afraid to ask questions!

A big part of the reason people will have questions (and maybe even concerns) is because one school district public library may do something different from another. This brings us to the next question:

Is [what is required] different for different types of school districts and associated school district public libraries?

Yes. As provided by Education Law Article 41, different district types have different elections requirements, and as required by Education Law Section 260(2), school district public libraries must handle elections and vote “in the same manner” as their district.[7] This means the practice will vary from district to district.

So, when a school district public library is conducting a vote, who is responsible for compliance? As the member asked: Is it the School District Chief Elections Inspector?

Not necessarily. If the library opts to conduct its own election and initial budget vote, or a re-vote, the library must appoint inspectors to oversee compliance, just like the school board of their district does. This obligation includes conducting, calculating, and keeping the records of the votes as required by the law that pertains to the district.

This is why many school district public libraries simply defer to their districts. There are a lot of compliance obligations for libraries that conduct their own vote.

That said, the reward of developing a compliant procedure and conducting a vote that is separate from that of the school district may be worth it, especially in places where the school budget is contentious and the library budget is less so.[8]

School district public libraries that conduct their own votes should periodically ensure that their procedures match what is being done by their school district. Further, such libraries should have written procedures setting out their process for assessing petitions and conducting, certifying, and keeping the record of votes. Finally, the procedures should be reviewed from time to time by a lawyer, who should provide the board with a written assurance of compliance.

Thank you for a thoughtful array of questions! School district boards, school district library boards, their attorneys, and reporters on the school district election beat will hopefully find this to be a good starting place for confirming what is required.

There is no law in New York State that prevents public library employees from volunteering at the library they work for, but there are other things that can forbid such volunteering or make it so risky that it is not worth it.

Those things are:

1. A union contract that forbids it.
2. A library board-approved policy that forbids it.
3. A municipal policy that forbids it and applies to the library because the library’s employees are covered by the municipality’s workers’ compensation insurance.
4. There is no clear path forward to volunteering, so everyone worries that it is wrong (this is the most common impediment).

A library that wants to enable employees to joyfully volunteer their time[1] can follow the checklist below to create a clear path forward.

A template letter for an employee volunteer is:

RE:     Volunteering at the ABC EVENT

Dear EMPLOYEE:

Thank you for agreeing to volunteer at the ABC EVENT!

During this event, you will be INSERT ACTIONS. Your volunteer service will be coordinated by EVENT LEADER.

EVENT LEADER knows that you are serving as a volunteer and that you may not be asked to perform any of your usual duties at the event. If there are any concerns about that, please alert me immediately.

The Library’s Volunteer Policy sets out the rules for volunteer service.

I hope you have a great time helping out with this event!

Gratefully,

DIRECTOR

Sample text for an “employee volunteers” section to add to a volunteer policy is:

Employees as Volunteers

Employees are welcome to volunteer at community events hosted by the Library and Library affiliates at or for the Library [such as the Friends].

Just like for all other volunteers, each employee volunteer experience will be confirmed by a letter or sign-up sheet that sets out the activities that the employee will do on a voluntary basis.

To minimize the perception of improper pressure to volunteer, employees will never be asked by the Library or its affiliates to volunteer; all service must be initiated by the employee expressing interest in a generally known opportunity.

Employees volunteering shall not perform their regular duties or use their employee access during the volunteer experience. Events that require the assistance of Library employees for things like opening and closing the Library and use of Library resources shall not rely on employee volunteers; use of employee access and/or employee proficiency with Library resources must be paid employee time. This must be taken into consideration when volunteer events are planned.

Employees who violate Library policy in the context of a volunteer experience may be subject to consequences, but such violation shall not be evaluated as job performance.

Employees shall not receive rewards or benefits for volunteer service from the Library, except those accolades given to all volunteers generally (for example, a public acknowledgement of service).

Thank you for a great question!

For the five people reading this who don’t work day-to-day on library budget matters but for some reason care about this question,[1] I will explain: a “414” is the nickname for when the voters of a village, town, city, or county approve a separate tax levy to support a public or association library (or libraries).

The “414” got its nickname for the reason set out in the question (“Chapter 414 of the laws of 1995”), but the tax is enabled through Education Law Section 259. It is called “414” to differentiate it from another fun nickname in library tax-land, the “259,” which is reserved for levies approved by school district voters.

“414” is actually a bad nickname,[2] because in the time since “Chapter 414 of the Laws of 1995” was passed, the part of the law governing “414 votes” has changed (in 1996, 1997, 2021, and (most recently) in 2023. I guess changing “414” to “587” (for “Chapter 587 of the laws of 2023”) is too cumbersome.

While I appreciate that nicknames are important, that isn’t the real reason I am reviewing this history. Rather, I am reviewing the history because it is relevant to the question: is a “414” a “new” tax?

The answer is: in 1995 (when the vote was only to “increase” the amount to appropriate), there may have been some grounds to say it was not a “new” tax. But since the 2007 change, the law has allowed for the tax to be not only “increased” but to be “established.”

So, since 2007, without a doubt, a 414 (or, more fittingly, a “184” for “Chapter 184 of the Laws of 2007”) can be a “new” (as in separate and never having happened before) tax.

While the phrase “new tax” might be a repugnant notion to some,[3] to call a tax proposed by the voters, endorsed by the library board, and separately enforced by the power of a tax levy and a lien on real property is… disingenuous, at best. In fact, it could be viewed as downright dishonest, by some.[4]

A tax such as a 184[5] is defined in New York’s Real Property Tax Law[6] as “a charge imposed upon real property by or on behalf of a county, city, town, village or school district for municipal or school district purposes…”[7]

The ability of any library (not just a library created by the taxing entity) to benefit from a 184 or a 259 is a vast power.[8] As a separate tax, it is also subject to the Real Property Tax Law’s provisions about refunds (meaning a library sometimes has to return part of it). As a tax, it can be enforced by the power of the state, and it provides an important source of independent, separate funding. For these reasons, its status as a new tax (when it is first adopted) should not be denied.

Libraries that want to point out that a new 414 to replace funding that from a municipality’s budget can stress that it’s not an additional charge (if the amount isn’t increasing).

A newly established 414 (or whatever you call it) is a new tax. An official source that glosses over these considerations may want to refine its guidance.

Thank you for a thoughtful question.

This is an important question. While the legitimacy of trustees (and not-for-profit directors) is rarely challenged, when it is, the validity of their term is one of the reasons. Of course, properly staggered terms give a board stability, with only a few new members having to learn the ropes annually.

“Trustee drift” happens when the original staggered terms (as depicted in the member’s question) get out of whack, and terms expire unevenly.

There are many reasons for trustee drift, and they vary from library to library and from library type to library type.

At a municipal public library,[1] the drift can occur if there is a disconnect between the appointing board and the library. The disconnect can be caused or exacerbated by:

• The library board not appointing replacements for trustees who leave the board early;[2]
• The municipal board not appointing new trustees in a timely manner;
• The library board not keeping its bylaws in synch with its charter;[3] and/or
• The lack of a defined process for the library to nominate new candidates or to confirm that current trustees are interested in re-upping.

So, to address the member’s question: once drift happens, how can it be fixed?

While I appreciate that the member doesn’t want to check the minutes of every meeting for the last twenty years, some documentation is needed.

First, it is important to check the charter, which may have some clues or a scheme to inspire the fix. For instance, in the member’s question, their library started with a clear pattern for the expiration of the eleven trustee slots: 2-2-2-2-3. So even if the final resolution doesn’t track all the way back to the original terms, using that pattern is sensible.[4]

Next, it is important to check the local laws, because some municipalities do have laws pertaining to the local library. A quick search in the village/town/city/county law for “library” can rule this in or out.[5]

Next, check the bylaws. Are they consistent with the charter? Do they have any provisions that speak to this situation?

Next, check the relationship with the municipality. Is there a memorandum of understanding, letter, or correspondence that confirms how the library and municipality jointly handles nominations and appointments? If there isn’t, it might be good to develop one while handling the situation.

And finally, create a chart of the current trustees and their terms, so whatever the resolution is, no trustee is short-changed for their current term, and the library can select the most elegant way forward.

When the chart is ready, identify how many future “special terms” (of one year, or two, or three, or four) are needed to restart the stagger, and then propose the special terms to the municipality.

Here is a template letter:

RE: Library trustee terms

Dear members of the [municipal body],

The Library is grateful to the [municipal body] for appointing trustees.

As you know, the Library has # trustees who serve #-year terms.

Originally, these terms were staggered to ensure an even pace of terminations. Over time, however, the terms have drifted, and we now have the undesirable impact of too many trustees expiring at once (for instance, # set to expire in YEAR).

To address this while also ensuring our current trustees serve their full #-year terms, the library proposes # “special terms” to help us reset the expiration times.

To do that, we will send a request for a special term every November until YEAR, with suggested language for the appointment. When a current trustee is willing and able to continue service for another year to accomplish this, we will let you know.

The proposed resolution language for this is:

WHEREAS the Library has requested the use of a limited number of special terms to achieve the important goal of restoring the staggered expiration of terms of library trustee service; and

WHEREAS NAME has expressed a willingness to serve such a special term,

BE IT RESOLVED that NAME is appointed to a special term of one year, starting on January 1, YEAR, and ending on December 31, YEAR, with the understanding that such special term does not count towards any cap on terms or years of service.

With this approach, we will be back to staggered terms by YEAR.

Thank you for considering this approach! If agreeable, we will send a letter with regular nominations and a nomination for the special term.

Thank you,

So long as all parties (the library board, the trustee, the appointing board) are in agreement, and no regular terms are short-changed, this approach should enable the library and municipality to eliminate the drift.

I like to tag the different board seats with a rota and seat number, like this: Y1/1, Y1/2, Y2/1, etc. But whatever internal tracking system (“Slot 1” or “Seat Alpha”) works for you is just fine.

And now for an important caveat: because this is an ad hoc, common-sense solution and not enabled specifically by law, it is wise for the municipality’s attorney to preview this approach and deem it sensible. If any municipal attorney out there disagrees with this and wants to give me a call with a better solution,[6] you are welcome to do so!

Thank you for an important question!

I am so glad we got this request! A long, detailed, and deeply footnoted resource is the only way to responsibly discuss the difference between these things.

We’ll start with: what is “lobbying?”

“Lobbying” is broadly defined as making contact with a government official to ask for something.

Of course, “asking for something” encompasses a LOT of activities. So, after broadly defining lobbying, the law then narrows it down a bit.

The federal lobbying law[1] whittles its definition of “lobbying” down by exempting things such as testimony, rule-making submissions, “asks” made in speeches or other general communications, and contact between public officials in their official capacity (for instance, if a library treasurer asks the IRS to give the library an extension on filing its Form 990, they are not lobbying).[2]

New York State’s lobbying law[3] also reduces its broad definition of lobbying with various exceptions (for instance, if a library’s attorney asks a local government’s attorney about collaborating on a bond initiative, it is not lobbying).

Because of the many holes in this wide net, a large part of getting lobbying right is taking the time to know what lobbying is, and what it isn’t.

For libraries, museums, and other cultural institutions, things that are NOT lobbying (although they could be interpreted as “asking the government for things”) are:

• Issuing reports to the community that could be construed as making an “ask” related to funding, a grant, or legislative action[4];
• Stating legislative, financial, or other asks of the government to reporters or the news media;
• Joining in a public statement with other libraries or a library system about pending legislation at the local, state, or federal level;
• Testifying before a local, state, or federal legislative body (even if it pertains to something of importance to the library);
• Engaging in advocacy that doesn’t make contact with a specific official (for example, gathering at the steps of the capital building with signs asking for funding);
• Appearing before a local zoning or planning committee as part of a proceeding;
• Submitting a response to a question put by a legislator or public official;
• Procurement activity after the contract is awarded.

For libraries, museums, and other cultural institutions, relevant examples of things that ARE lobbying are:

• Directly asking a legislator to change a law;
• Directly asking the governor to issue, adopt, rescind, or amend an executive order;
• Directly asking any public official to make a determination regarding a procurement (like a contract to the library system to do a scanning project);
• Asking in private for budget moneys as part of the municipal budget (not at an open meeting or public hearing);
• Directly attempting to influence an official’s decision, outside of an established process (“Can we meet for lunch and talk about a new roof for the library?”).

In addition to knowing what is (and isn’t) lobbying, it is important to know who is (or isn’t) a “lobbyist.”

In New York, a lobbyist is “every person or organization retained, employed or designated by any client to engage in lobbying.”

Again, a pretty wide net! Basically, whether a company employs or hires a lobbyist as an independent contractor, or someone volunteers to ask a government official for something on the organization’s behalf, they are a “lobbyist” who has to register and report on their lobbying.

But just as with the definition of lobbying, the NY definition of lobbyist has holes. Here they are: “The term ‘lobbyist’ shall not include any officer, director, trustee, employee, counsel or agent of the state, or any municipality or subdivision thereof of New York when discharging their official duties; except those officers, directors, trustees, employees, counsels, or agents of colleges, as defined by section two of the education law.”

This is a very exciting loophole for public libraries,[5] because it means their officers, directors, trustees, employees, counsels or agents are not lobbyists (although their paid lobbyists are). This can save some registration paperwork and filing.

What “paperwork and filing” can it save?

Well, in New York, every lobbyist who receives in excess of five thousand dollars in reportable compensation and/or expenses per year must register as a lobbyist and file quarterly reports of lobbying activity; this is true no matter what type of organization the lobbyist is working for. But public library employees, officers, and trustees lobbying state and local officials are exempt from being considered “lobbyist”,[6] meaning those people might by lobbying, but they don’t have to individually register.

That said, I have to add two important caveats.

First, while there is a registration exemption for public libraries who only use a director or trustee to lobby in New York, this has no impact whatsoever on the Internal Revenue Code’s bar on excessive use of resources for lobbying purposes.

As the IRS puts it: “In general, no organization may qualify for section 501(c)(3) status if a substantial part of its activities is attempting to influence legislation (commonly known as lobbying). A 501(c)(3) organization may engage in some lobbying, but too much lobbying activity risks loss of tax-exempt status.” The IRS then has some “tests” to ensure a 501(c)(3) does not get too close to the danger zone.[7]

Second, this exemption for public library employees and trustees does not apply to federal lobbying, although the annual threshold triggering registration and reporting is higher ($16,000 dollars).[8]

And now we’ll move on to “political activity.”

Here is where things can get tricky, and a lot of people get confused: “political activity,” despite its broad phrasing, is defined by the federal Internal Revenue Service as supporting or opposing a political candidate or party. That is something a 501(c)(3) corporation can never, ever do[9], and is why a public library—or any 501(c)(3) tax-exempt organization—cannot donate to a political action committee (a “PAC”).[10]

And now we’ll move onto something for which (until November 2025) there has been no word or succinct phrase (just a string of case law and advisory opinions)— gepvia.[11]

Gepvia is the use of government resources to tell voters how to vote on a particular issue. Examples include:

• A public library paying for “Vote Yes!” flyers
• A school district public library board voting to issue a “Vote Yes” statement to the public
• Public library property with signs telling people how to vote[12]

Why is “gepvia” forbidden? Because the use of public resources to pay for production and distribution of campaign materials for a partisan cause in any election or referendum has been held to “fall within the prohibition of Article VII, Section 8 of the N.Y. Constitution.”[13]

I know this is a tad complicated,[14] so here is a poem to summarize:

Libraries using tax money

Can pay to lobby and remain sunny.

But a public library boosting its idea

Might be engaging in gepvia.

Meanwhile Section five-o-one-cee-three

Forbids political activity.

And no matter how strong your feeling,

Do not engage in electioneering.

So...

Ask a senator to take action?

The law allows that satisfaction.

Tell the voters how to vote?

Publics can’t get in that boat.

Want to support a candidate?

No library org can participate.

Want to advocate at a polling place?

That’s a crime, give it some space.

And...

For the publics, here’s a handy quote:

“You can hang in the lobby, but don’t tell voters how to vote!”

Thank you for hanging in there on this complicated issue.

It can be a fact as shocking as learning that there are no “Berenstein Bears”:[1] a public library or library system—or even a town or a village—can engage directly in lobbying.

A public library, library system, or municipality can also join a membership organization that uses funds from its dues to engage in lobbying.[2]

Now, it is important to not confuse lobbying with political activity, political donations, electioneering, or telling regular voters (not lawmakers) how to vote on a particular item. Those are forbidden to any quasi-governmental organization, and all but the last one (telling voters how to vote[3]) are forbidden for association libraries and other private nonprofit organizations, too.

“Lobbying”—which any library organization of any type can do or pay another entity to do on its behalf—is an activity that is defined by state and federal law, and it means directly asking government officials for things,[4] such as:

• A budget item
• A new law
• A change to the law
• Voting against something
• Changing the enforcement or interpretation of something

Lobbying involves direct contact with a government official… not testimony at a hearing, not demonstrating in front of a building, and not attending an open meeting to make an ask or presentation (activities many people call “advocacy”).

For readers who are taking this in and having a Berenstain Bears Moment (“It can’t be true!”) about tax-funded entities lobbying, try this exercise: If an organization is lobbying or hiring lobbyists in New York, you can look up its reporting here. Search the database for “town” or “school district” and you will see many towns and other taxpayer-funded entities engaging in lobbying.

Basically, if a taxpayer-funded entity has decided that lobbying is in the best interests of the organization, the expenditure is legal.[5] As long as all the lobbying registration and reporting requirements are met and not too much money is spent on the lobbying, all will be well.[6]

So yes, a public library or library system can use budget moneys derived from taxpayer revenue to hire a lobbyist or pay dues to an organization doing advocacy/lobbying.

For more information on the difference between lobbying, political activity, advocacy, and gepvia,[7] please see this longer, more detailed RAQ.

Rule #1 in library law: there is never an “always.”[1]

In this case, the question has a correct premise: a library’s charter will often set a range of trustees, after which the bylaws or an action of the board can set the number.

But do the bylaws “always” have to do this?

No, they don’t have to, and sometimes, they can’t.

This is because a charter might set another way of confirming the number. For example, at least one charter I have seen requires that the number be set by a resolution passed by a three-fourths majority vote of the board. Take that, bylaws![2]

Still other charters could require the number be set in the bylaws, or by a vote of a library’s membership,[3] or by a throw of a ceremonial dart every Leap Year.[4] With over seven hundred chartered libraries in New York State, there are lot of possibilities.[5]

This is why any bylaws changes—and any action that affects the number and terms of trustees—should always start with a quick look at a library’s charter. Who knows what’s hiding in there?

Thank you for a niche but important question!

The concerns raised by the member are valid: absolutely, Artificial Intelligence (AI) OR real people can use published documents, including policies, to exploit a target.

What’s interesting is that this issue actually pre-dates AI; it emerged early in the Internet era, when (often nefarious) people would use information published on websites—along with other techniques—to exploit targets.

Here is a fictional example:

A business’s website includes its protocol for visitors, photos of the interior of its office, and its fiscal policy. A would-be thief we’ll call “Cooper” reviews the protocol, assesses the office interior, and uses the information to gain access to a manager’s office, where Cooper acquires the serial number of a computer. Coopers then calls that office, pretending to be IT (the serial number aids this impersonation) and gets a username and password for the business’s online banking system, which Cooper uses to access accounts described in the fiscal policy.

Poof! Money gone.

To guard against this, many businesses take a careful risk management approach to what they publish (and hopefully admonish people who put their passwords on Post-its).

However, anyone who reads the news knows that financial fraud based on social engineering and computer intrusion is only going up and artificial intelligence is helping with those attacks.

So, is it time to stop publishing public library policies and other documents?

No.

Published policies—even fiscal controls that set out the process for validating checks and the maximum amount of cash to keep in a safe—are not a skeleton key for hackers (AI or otherwise).

Of course, public institutions have always had to be careful about what information they make available. Staging areas and other resources for responding to terrorism and active shooters must be restricted to avoid exploitation by would-be attackers. Bank account numbers and other account-specific information should not be published. Computer passwords, the location of servers, and other sensitive information should be restricted. These considerations should be made in the drafting phase, not when the policy is ready for publication.

That said, because many of their records are FOILable,[1] public libraries should not rely on restricting access to them for security.

Rather, all public library workers and trustees with any part to play in data, financial, and physical security should be trained in the following:[2]

• Never to provide their password to anyone;
• Follow fiscal controls at all times;
• Follow all IT security rules at all times;
• Notify the IT provider in the event of a suspected data breach, virus, or attack;
• Never allow unauthorized people into restricted areas;
• Report lost keys immediately;
• Secure password lists;
• Never access sensitive information on personally owned devices (like the bank accounts username and password on a director’s cell phone);
• Immediately report and document all outside requests for system and/or fiscal information (passwords, location of servers, banking information);
• Remember that big hacks/ransomware attacks usually start with human failure (giving a password, leaving things logged in, loss of device).

So, are the member’s concerns valid? YES. Exploitive people can use AI to find, copy, and use your library’s policies in attempt to gain access to critical systems.

BUT, if the policies are not published, such people can look up public grant information, building records, or meeting minutes to make themselves sound legitimate for a different social engineering scheme. And if your policies are not available to your community, your library runs the risk of being accused of a lack of transparency.

Instead of restricting access to policies, libraries should develop policies that help prevent the library’s financial exploitation.

For example, a public library’s financial policies should prescribe appropriate internal controls and appropriate use of technology to verify transactions prior to them being irrevocable. For this, the newly released (2025) local government guidance from the New York State Comptroller is excellent.[3] This is mandatory reading for all public library treasurers, controllers, CFOs, accountants, bookkeepers, and directors.

In the same vein, IT policy should include either adequate internal resources to routinely update security and train employees, or a contract with a provider that provides the same assurance (for many public libraries, this is the role of the library system, and it is an increasingly complex and costly role).

While care in drafting policy is important, the essential elements of avoiding ransomware and other attacks are routine updates to security measures and routinely training of people to NOT BE FOOLED.

With the right training and adequate security, AI-powered or good ol’-fashioned hackers will have a tough time getting through, even if they try to use your own policy against you.[4] Train your people, and you don’t have to worry (too much) about training AI.

Now, if we want to talk about putting things behind a log-in to avoid misappropriation of content for the general good of society, that’s another story…

… for another “Ask the Lawyer.”[5]

Thanks for a great question!

One of the many reasons public libraries like to collaborate with “Friends” groups on fundraising is the added flexibility Friends groups (and other non-governmental groups) have when it comes to money. For example, Friends groups:

• Can buy goods and services without competitive bidding;
• Can make decisions about money whose records are not subject to the Freedom of Information Law; and
• Can invest money without following the restrictions of the General Municipal Law (GML).

It’s this last one that impacts the question. Municipal, school district, and special district public libraries have to follow the GML’s requirements for investment of public money, and that takes a lot of options off the table.

This prohibition is so complete, it even stops public libraries from keeping donated shares of stock that don’t meet the requirements. Any stock that is received as a gift has to be liquidated (sold) and replaced with either cold, hard cash or a compliant investment.

Except investments in a “true trust.”

What is a true trust? For purposes of this question, a true trust is a gift where the beneficiary getting the money has ZERO control or ownership of the asset generating a payment but gets the benefit of the gift.

Here is an example:

After a 70 years as a successful designer of board games and a shrewd investor, Ms. Superflua Affluence dies. In her large and complicated will, Ms. Affluence leaves her local public library roughly one million dollars in shares of stock. However, not trusting the library board to manage the money, Ms. Affluence decides not give the library the money outright. Instead, Ms. Affluence puts her lawyer, Estee T. Planning III, in charge of the stock shares as a trustee. Ms. Affluence (from beyond the grave) further specifies that the library will never, ever, ever actually own the stock outright, but will get the benefit of the stock for ten years. After ten years of the library getting whatever revenue is generated, the stock shares will go to the local cat shelter, Whisker Pops, who will own it outright.[1]

That is a “true trust.”

In a true trust, the assets are never under the control of the library, but the library gets the benefit of the legacy. This is allowed by the interaction of two laws: General Municipal Law Section 11 (which put the rules about investments in place) and Estates Powers & Trusts Law Section 11-2.2 (which creates the powers of trustees).

Where does this complicated lore come from? In 1995, the Office of the State Comptroller issued Opinion No. 95-30, which set all this in motion. The Comptroller did not use a cat analogy but set things out pretty plainly: public libraries must follow the GML’s restrictions on investments, but a “true trust” managed under Estates, Powers & Trusts Law (EPTL) Section 11-2.2 just has to follow the EPTL’s requirements.

The reason the Comptroller had to lay it all out was that the law had recently been changed (in 1992) to specify that public libraries were subject to GML Section 11. Several times prior to the change, the Comptroller had clearly stated that public libraries could keep donated investments. When the Comptroller laid out the new requirements in 1995, he stated, “other prior opinions are hereby superseded to the extent inconsistent with the above.”[2]

Since three decades is a pretty short time span in Libraryland, it is possible that some public libraries still have investments that don’t meet the requirements.

If a public library finds that this is the case, this is a good one to bring to a lawyer. Depending on how the stocks were acquired, they could be in a trust; if they need to be converted, it is more important that it be done properly than quickly. This is not one to handle without experienced advice and guidance.

Thank you for a great question on a complex but critical bit of law!