Policy

Before we get to the main question (can libraries sell things to raise money?), we must refine something the member mentions in passing.

Yes, under Education Law §260, libraries can dispose of and sell used books—and the library trustees can retain the money.  But since that law actually requires any library[1] disposing of used books to hold such a sale (or to offer the books for free to another not-for-profit or government agency in their area), such revenue generation is more an obligation than a fiscal liberty.  In other words: the board can sell the books and keep the money…but the power comes with strings. 

As it happens, that is the theme of this entire answer!

So, is it “illegal” for a library to sell things and retain the money?  No, it’s not, but it is complicated, and the complications warrant extreme caution before undertaking such a venture.

Let’s discuss this authority and its complexities.

The ability to sell library assets and retain the revenue is rooted in the statutory authority of library trustees. 

As stated in Education Law §260:  “Public libraries…shall be managed by trustees who shall have all the powers of trustees of other educational institutions [created by the Regents].” [2]

These “powers,” with some modifications, track the powers of boards created by New York’s Not-for-Profit Corporation Law.  Two of those powers are:

1) the acquisition and sale of real property (land, buildings, easements); and

2) the acquisition and sale of personal property (books, cars, artworks).

For libraries, these powers come with a well-recognized financial autonomy.  As the New York State Comptroller puts it:

With respect to library moneys…we note that public libraries are, for most purposes, fiscally autonomous from the sponsoring municipality (see, e.g., 1983 Opns St Comp No. 83-32, p 38). Thus, the ultimate control of the use, disposition, and expenditure of those moneys is vested in the library board of trustees even if the municipal treasurer is the custodian of library moneys. (Education Law, §§226[6], 259[1]; 1987 Opns St Comp No. 87-84, p 125; see also Opn No. 87-49, supra; Opn No. 86-54, supra). (1993 Op St Compt File #93-15)

The practical effect of this autonomy has led the Comptroller to conclude (in two separate opinions):

The trustees of a city public library may sell two bookmobiles belonging to the library at either a public or private sale and may use the proceeds of such sale in such manner as they shall deem to be in the best interests of the library. (1983 Op St Compt File #83-9) [emphasis added].

It would seem that a library board of trustees may sell an unneeded library building, title to which is properly vested in the library board, without voter approval. (1980 Op St Compt File #125)[3] [emphasis added].

So selling items—and retaining the resulting revenue—is part of a library board’s acknowledged authority. 

Of course, this authority is not unchecked. [4] As the Comptroller noted in a 1995 Opinion, the fiscal autonomy of a public library is accompanied by a requirement for absolute transparency:

…General Municipal Law, §30(3) requires that an annual report of financial transactions, including those involving private source moneys (Opn No. 88-76, supra), be made by the treasurer of each public library. The report must be certified by the officer making the same and, unless an extension of time is granted, must be filed with the Office of the State Comptroller within 60 days after the close of the library's fiscal year (General Municipal Law, §30[5]). In addition, the Education Law contains certain requirements for public libraries to report to the State Education Department (see Education Law, §§215, 263). Finally, as noted in Opn No. 88-76, supra, the town board, in determining the amount to be raised by taxes for library purposes, may take into account a library's private source funds and, therefore, may request from the library information concerning such funds. (1995 Op St Compt File #95-30)

In other words: the revenue raised by a sale can be retained, but must be spent in a manner consistent with the library’s plan of service, must adhere to relevant procurement and accounting procedures, and must be properly reported.

And there are more “strings:”

First, even when allowable, not all revenue generated by a not-for-profit entity is entitled to be free of tax.  “Unrelated business income tax” (“UBIT”) is risked when commerce unrelated to the mission of a not-for-profit generates revenue.  This is by no means a bar to a not-for-profit generating some revenue, but is a potential accounting burden, mission distraction, and cost.

Second, but perhaps most important, a library should never accustom the public to the notion of libraries independently and routinely generating revenue. 

Operational funding is the function of a library’s supporting territory and the state.  The public should never get the impression that libraries self-fund; libraries are by law a free resource serving their public, and should be funded. 

And as emphasized in Comptroller Opinion #95-30, above, a funding entity can consider library-generated revenue and donations when it’s time to levy taxes.  Translation: generate revenue at your own risk.

So: yes, the boards of public, school district, special legislative district, and association libraries have the power to sell things and retain the revenue, but if they do, each in its own way should be very careful to:

• Follow its own charter and unique rules;
• Follow all applicable laws and regulations, and know it will need to externally report the sale and use of the money;
• Never create the impression of charging its members for services;
• Not engage in activity that would create “UBIT” (unrelated business income tax), without specific advice from legal and tax professionals;
• Conduct itself with fiscal transparency; and
• Not make any revenue-generating activity a function that could risk the reduction of public funding. 

For a board seeking financial flexibility and responsiveness, these “strings” can be very limiting.   This is where budgeting should help out. 

Rather than conducting their own fund-raising, all boards should explore designating a small part of the library’s budget for board-identified needs (what the member calls “the board’s needs”), so long as those needs are consistent with the library’s plan of service and overall best interests, and the spending is appropriately documented and approved. 

For instance, a board can budget for a strategic planning retreat, an emergency fund, an external consultant, or a unique event for the library.  A library investment fund’s annual revenue can be reserved for a particular use.  The board just has to bear in mind that all these actions will be reported in their publicly disclosed library budget, and so must be easily perceived as mission-related, prudent, and proper.

This why library budgeting is both an art, and a science.[5]

Now, to the final part of the member’s question.  These issues of compliance, transparency, flexibility, and propriety are the very reasons why public libraries have “Friends” (not-for-profit corporations with missions to support a library).  

Every library board of Trustees should feel they can look to their “Friends,” for mission-aligned support.  In an ideal world, the board-approved library budget handles all operational needs, while the Friends’ budget helps out with added layers of special events, acquisitions, and programs.  And when planning for capital acquisitions and improvements, it’s a strategic all-hands-on-deck.

Of course, we don’t live in an ideal world; the operations of two separate not-for-profit entities can be tough to coordinate and align.  With that in mind, I encourage every library board to review the “Friends” section in most recent NYLA “Handbook for Library Trustees in New York State.”  This invaluable resource sets out solid tactics for cultivating and reaping the benefits of a Library/Friends relationship (something it’s easy to write about, but often hard to do).

Thank you for your question.

Depression.  Burn-out. Dissatisfaction. Lack of connection.  Lack of money. Lack of parking.

These are just some of the reasons students give when they choose to leave—or are forced to leave—their college or university before graduating. 

Many times, these reasons snuck up on them, although in hindsight, they could be seen: a pattern of missing classes, a downward trend in grades, maybe even dropping out of clubs and other campus activities.  And almost always, after a student leaves (often in tears) faculty and staff, coaches and friends, are left wondering: could they have done more[1]?

No matter what events led up to it, for each such incident of student “attrition,” the stakes are high: student loans, a sense of failure, the end of a career dream, and perhaps even a medical condition that went untreated while the student struggled on their own.

But what if the clues could be seen earlier?  What if the downward spiral could be stopped?

Fueled by increasing technological capabilities, many institutions of higher education are developing cross-campus, inter-sector systems to do just that: hoping to correlate the warning signs and fight student attrition through early intervention.  Using a variety of commercially available and home-programmed tech, they are tracking everything from dining hall meals, to class attendance, to visits to the gym.  These factors, as well as comments from concerned faculty or staff, are then routinely assessed and cross-checked for red flags. 

Because libraries are increasingly hosting classes and providing adjunct space for group work, it makes sense that such a system would consider tracking library usage.  After all, it can be a good sign that a student is just getting out of their dorm room!

But there is a tension within this well-meaning system.  College is where young adults journey to find their independence and privacy; promoting this maturation is part of a college or university’s purpose. Further, a net of privacy laws constrains the easy sharing of certain types of information.  But knowing the painful consequences of unchecked student struggles, many institutions work hard to find the right blend of metrics and policies to be able to intervene. 

Part of this hard work is finding the right path through that net of privacy laws.  As the member writes, the biggest privacy law of all, FERPA,[2] does allow such inter-departmental sharing,[3] and even parental notification about safety concerns, when the time is right.  It does this through both application of the law, and “FERPA waivers.”

But in New York, FERPA is not the only privacy rule to apply[4] to these information-sharing systems.  As the member states, New York’s Civil Practice Laws and Rules (the “CPLR”) §4509 (“4509”) also governs a student’s records—at least, their library records.  And it sets the bar high.

4509 is a short law where every word matters, so it is worth quoting in full here: 

Library records, which contain names or other personally identifying details regarding the users of public, free association, school, college and university libraries and library systems of this state, including but not limited to records related to the circulation of library materials, computer database searches, interlibrary loan transactions, reference queries, requests for photocopies of library materials, title reserve requests, or the use of audio-visual materials, films or records, shall be confidential and shall not be disclosed except that such records may be disclosed to the extent necessary for the proper operation of such library and shall be disclosed upon request or consent of the user or pursuant to subpoena, court order or where otherwise required by statute. [emphasis added]

As you can see, “college and university libraries,” even though they are part of larger institutions, are clearly covered by this law.

So how does 4509 impact the member’s question?

First, every library (academic or not) should have a clear sense of what it regards as “library records.”  As can be seen in the statute, the term is not precisely defined (“including but not limited to” leaves a lot of room for argument!).  Some of the obvious ones are listed in the law (circulation records, database searches, copy requests) but unnamed others could be just as vital to privacy (use of a 3-D printer, security footage covering the circulation desk, and in the member’s example, the use of research appointments).   And still others activities that use the library may or may not apply (classes conducted in the library, but not part of library programming, are arguably excludable).

To protect the records as required by law, a library must know precisely what records it must protect.  This is why, just like a public or association library, a college or university library should have a “Privacy of Library Records” policy clearly showing where it draws the line. Such a policy should also have a “subpoena response protocol,” so the library can train staff on how to receive internal and external third-party demands for information. 

And in a perfect world, this college or university “Privacy of Library Records Policy” should be known and supported by the institutional officer who oversees the library (a Provost or Academic VP).  This officer’s authority, from time to time, may be needed to ensure the policy is respected by campus safety officers, student disciplinary administration, and any other department that might want library records in service of another institutional purpose.  Librarians should not hold the 4509 lines alone!

Now, back to the member’s scenario.  Once a library knows precisely where it “draws the line” on library records, the member’s instinct is right: any access to information that falls within the institution’s definition of “library records” should be either denied, or allowed only as the law requires: via a signed consent from the user/student.

I know, just what every student wants—to fill out another form!  But these 4509 consents, just like a “FERPA Waiver,” are not only mechanisms to ensure legal compliance, they are a chance to educate students about their right to privacy. 

For instance, the consent form (I imagine it would be a digital click-through on a password-protected student account, but it could be a paper form) could say:

“The privacy of library records is protected by the law in New York State (CPLR 4509).  Your enrollment in the [SYSTEM NAME] will ask the library to disclose certain library records that are protected by this law.  As a library user at an library in New York, you have the right to keep your library records private.  A list of what [LIBRARY NAME] considers to be library records is here [link to policy].  If you would like to consent to the [NAME OF LIBRARY] sharing your library records with only [SYSTEM], please check the below consent:

[ ] I am at least 18 years of age, and consent to the limited sharing of my library records for purposes of sharing the information with the [SCHOOL NAME] [SYSTEM].  This consent does not allow sharing my library records, even within the school, for any other purpose.  No consent to share the records with external entities is give. 

I understand I will need to renew this consent every fall semester, and that I may revoke this consent at any time.

Of course, there is no legal requirement for annual renewal, but it is worth considering.  A year is a long time in the life of the typical undergraduate student, who may enter college with one set of civil rights values, and leave with another. With an annual renewal, the library not only complies with the law, but educates the student about their privacy rights on an annual basis.

So, to address the member’s final questions:

Have we crossed any lines here?

No.  By thinking about this issue during the planning phase of the system, you are making sure the lines are bright and well-defined.

Do we even need the opt-in statement?

You could call it that, but I recommend calling it a “4509 Consent.”  That would build awareness of this important law in our future leaders (and librarians).  Of course, as a lawyer, I may be biased as to how important that is (but it’s really important!).

Is this something clear or fuzzy/grey?

Not so long as your library has a clear and routinely evaluated policy defining what it regards as “library records.”  This can be tough at an integrated institution, where so much information technology crosses through different sectors.  But it should be done.

What should we be considering that we haven't thought of?  

I think you should consider buying yourself a nice cup of coffee or tea for doing your part to support a commitment to personal privacy in the United States of America and State of New York.  Unlike in the European Union, our privacy currently risks death by a thousand cuts.  Every bit of armor counts. 

Thanks.

And thank you.

 

Wow, what a great question: what is the hierarchy of laws impacting the employment conditions of librarians?

The laws impacting the employment conditions of librarians are a complex logic tree with many branches.  When I consider the amount of laws, and the permutations….

Just…wow.[1]

For a lawyer practicing in both library and employment law, this question is the equivalent of someone handing a librarian a huge box of materials while asking: “Can you catalog these, then use them in a ‘Library Employee Rights’ display for the lobby?”

I can’t wait to curate the display, but first, let’s take a look at what’s in the “library employment law” box.  We’ll take them in rough order of hierarchy/priority.

The first item in the box is a huge, grubby tome that lawyers, even younger ones, use every day (if they are at a firm owned by a crusty Gen X lawyer[2]): Black’s Law Dictionary. 

A legal dictionary is in the collection because, although no lawyer would ever litigate an employment law matter based solely on a dictionary definition, legal concerns often turn on precise word meaning, and employment law certainly does.  In fact, there are at least three different legal definitions of the word “employee” that apply to library-related issues.[3]

The second is not a book, but a collection of CD’s containing a huge database.  What’s on the database?  It’s the “common law”—a body of case law and rulings that can influence how black-letter laws[4] work together.  The “common law” is a body of shared language and precedent that can influence (sometimes heavily) legal decisions.  It is often the glue that holds legal decisions together.

And now, for a few volumes that are far less esoteric:

The Fair Labor Standards Act (“FLSA”): Among many other things, this is the law governing who must be paid overtime when they work more than 40 hours in the standard work-week.

Federal Civil Rights Laws: This is a compendium of laws governing rights protecting people under the jurisdiction of the USA from discrimination.  It includes the Civil Rights Act and the Americans With Disabilities Act. 

The New York Human Rights Law: This is a compendium of laws governing rights protecting people from discrimination in New York.  It includes protections on the basis of religion, sexual orientation, gender expression, prior conviction and pre-disposing genetic characteristics (among many other things).  It is why your library recently adopted a sexual harassment report form.[5]

New York Labor Law & Regulations: Among many other things, this is the law that mandates one unpaid break every six hours for certain hourly employees.

New York Civil Service Law: Among many other things, this is the law governing the hiring, advancement, compensation scale, discipline, and termination of most public library employees.

Federal Laws Governing Benefits: This is a compendium of laws governing employee benefits in the USA.  It includes a law called ERISA, and the Affordable Care Act.

The New York Laws Governing Employee Benefits and Protections: This is a compendium of laws controlling unemployment insurance, workers’ compensation for work-related injury, insurance for non-work-related injury, retirement benefits, and most recently, the Paid Family Medical Leave Act.

New York Education Law & Regulations/New York Not-for-Profit Corporation Law: These laws are combined in one handy volume to create the rights and duties of a chartered library, and its governing board (who, within a framework of laws, are the ultimate decision-makers regarding employment at their library).

Local Civil Service Rules:  Based on New York’s “Municipal Home Rule Law,” many of the details of Civil Service-controlled employment practices can change from county to county (and municipality to municipality).

Local laws: Some municipalities adopt local law to create further protections for employees.  These laws cannot be contrary to state, federal, and county law, but can expand employee rights further.

Random Authorities:  This book is a vivid graphic novel depicting numerous opinions by the Equal Employment Opportunity Commission (“EEOC”), the U.S. Department of Justice, the National Labor Relations Board, the New York State Comptroller, the New York Attorney General, the New York Committee on Open Government, and the New York Commissioner of Education, regarding matters impacting library employees.  One delightful example of this is an intricate decision by the State Comptroller about how much money could be spent on a party for volunteers.[6]

And finally, some really cool, custom works are in the box… 

A Choose-Your-Own-Adventure novel called A Journey Through Your Charter and Bylaws.

Why is this a choose-your-own-adventure?  Because while neither a charter nor bylaws can change the above-listed law, the “type” of library an institution is chartered as will impact if and how those laws apply.  And within the framework set by those laws and their application to your library, it is the board—whose composition and functions are controlled by the charter and bylaws—that is the ultimate party responsible for hiring and firing of employees, which sets the stage for all other employment-related actions.

A collection of scrolls labelled “Contracts.”  This could be as simple as a contract with an Executive Director or Book-keeper, or as complex as a “Collective Bargaining Agreement” with an employee union. It is important to note that while a contract can create a great many additional rights, it cannot be contrary to the Charter and Bylaws, nor any of the laws listed above (UNLESS there is not an “exception” in the law, allowing it to be altered by the terms of a collective bargaining agreement, and if your library type means they apply).

And finally, the most valuable part of the collection: a weird device, rather like a flour sifter, that says in big, bronze letters on its handle “IT DEPENDS.”  What does this screen do?

It tells you which laws apply to which libraries, in which order of priority, under which circumstances.[7]  When applied properly, this allows you to create…

Your Institution’s Employee Policies, drafted to comply with the law as it applies to your library, and to support your unique charter and mission.  Such policies should be routinely re-assessed to ensure continued legal compliance and support for your library’s key objectives (like attracting, retaining, and developing the best staff possible).

In other words—and in direct response to part of the member’s question—the purpose of policy is to articulate and apply the law as it governs your library.  No policy should ever contain a provision contrary to a governing law or regulation.  This is why policy must be routinely assessed, revised, and updated.

And that’s the collection.

At this point, I imagine the member who asked this question might be feeling: Whoa, information overload!

Let me show you my display, here….

You probably thought it was going to be a tree, right?  Nope.  It’s a finely balanced array of media stacked to look like librarian assembling a sculpture of…a librarian. 

Why is that?

No other entity created by law(s) has the type of support, mandates, restrictions, and—yes—latitude under the law that libraries do.  Yes, libraries operate with a strict framework created by the laws and regulations listed above,[8] and operate within exacting mandates…but within that framework, libraries have almost limitless discretion with policies.  That is how they function and evolve as reflections of their communities. 

That said, certain things fundamental, and cannot be trumped by much.  Here are a few (with links to the laws that back them up):

• In New York, librarians must get an unpaid half-hour break every six hours; https://www.labor.ny.gov/workerprotection/laborstandards/employer/meals.shtm
• Even if considered employees of their sponsoring municipality (which is often, at a bare minimum, debatable!), most librarians paid an hourly wage are entitled to protection under the FLSA; https://www.dol.gov/whd/regs/compliance/whdfs7.pdf
• In New York, unpaid volunteers may not replace or augment paid staff; https://www.labor.ny.gov/workerprotection/laborstandards/PDFs/FAQs_NonProfit_and_State2016.pdf
• In New York, any employee reporting or supporting a concern about sexual harassment is protected from retaliation;

 https://www.ny.gov/combating-sexual-harassment-workplace/workers

• In New York, public library employees serve at the pleasure of their boards, NOT their sponsoring municipality;

https://www.nysenate.gov/legislation/laws/NPC/202

• In New York, public library employees may be indemnified[9] by their governing boards;

https://www.osc.state.ny.us/legal/2001/op2001-12.htm

• In New York, association library employees may be indemnified by their governing boards;

https://www.nysenate.gov/legislation/laws/NPC/202

• And…while it can be rather a pain to work within, public library employees are protected by the New York Civil Service law:

https://www.nyla.org/a-librarians-guide-to-civil-service-in-nys-2018/[10]

 

How does this play out?

Let’s take breaktimes as an example.

In New York, employees have to take a break every six hours.  It’s the law.  In my office, when a paralegal gets so into the project they don’t want to stop, I have to order them[11] to take a break.  (at which point they do, because otherwise…irony).

Now, how I choose to support my employees as they take their break is up to me, and may become a matter of policy.  Do I supply a break room?  Do I have a fridge and a policy/procedure for keeping the break room clean and the fridge free of mold?  All of those things are discretionary—and to govern the details, I might have a policy that goes beyond the minimum.  But here is where things get complicated: If an employee doesn’t follow the policy, I may need to follow rules set by Civil Service to discipline them. But if I am selectively enforcing the policy in a discriminatory way, state or federal civil rights law could govern. Or perhaps the employee will first file a union grievance, which we’ll have to arbitrate…

And that is the hierarchy of employment law.  It’s not really a heirarchy…it’s more of a fractal pattern.  The good news is, library leadership gets some say in the pattern.

What shape does your library pick?

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[1] If I were the sort to write via emoji, I would be using the icon for “Mind.  Blown.”

[2] That’s me.

[3] There is a definition for purposes of liability, a definition for purposes of compensation, and a definition for purposes of copyright ownership of employee work product.  And yes, they are all slightly different.

[4] “Black letter” laws are those “embodied in…statutes.”  Thanks, Black’s Law Dictionary! (Centennial Edition)

[5] Due to changes in 2018.

[6] This opinion is here: https://www.osc.state.ny.us/legal/1990/legalop/op90-63.htm.  The final decision?  “A public library may sponsor a recognition dinner for volunteer library workers, but may not sponsor a party for the senior citizens of the sponsor municipality or school district..

[7] This “screen” is either a lawyer, an HR professional, a civil service professional, or a library system or council working with one of those to support your unique operations.

[8] And more….so many, many more…

[9] In layman’s terms, this means you are protected in the event you are sued for just doing your job.

[10] I was lucky enough to attend an excellent presentation by authors of this Guide at the 2019 NYLA Conference. 

[11] My team is great!  Every employer should have this problem.

This is a huge question! 

I say “huge” because it has about fifteen different answers, and many of them depend on the nature of the performer, the songs performed, and the way the audience entered the performance.

But I will limit this reply to 5 answers I think are most helpful to the average library:

Answer #1: Yes, a host institution can face liability for an on-site infringing performance by either itself, OR by a non-affiliated presenter.  In a copyright case, everyone who contributed to the infringement is generally named as a defendant.  So even if the library is simply the “innocent infringer” providing the venue, there is a risk it could be sued.

Answer #2: Yes, there are several things a library can do to protect itself!  When it comes to a performance by a third party, the best option is a properly worded contract. 

For any use of its facilities, the library should have a stock contract that provides for the following:

1) verification that the performer has all the licenses and permissions it needs to perform;

2) precise language requiring the user to “indemnify and defend” the library for any legal claims related to the event (including infringement); and,

3) proof that the user has the right insurance to back up to their indemnification. 

The contract should also take into account what type of entity your library is, and how it occupies its location (Tenant?  Owner? What type of insurance do you have?). 

A lawyer familiar with insurance, real property, copyright, and premises liability law should be able to put this together for you.

Answer #3:  That said, there are several types of performance that are exempt from copyright infringement claims.  For example, under §110 (4) of the Copyright Act, it is not a violation to perform a musical work live and in person, or even to play a pre-recorded song, so long as the performance is “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” and there is no “direct or indirect admission charge.” 

In other words: no transmission + no money + no commercial advantage = no problem. 

Of course, “commercial advantage” can be a tricky phrase.  If the song is being performed at the library’s annual fund-raiser, even if the performers are donating their talent, the use is not allowed.  When you think about it, that makes sense—what if the copyright owner doesn’t want to help the library with its fund-raiser?[1] Congress was very careful in its commentary to clarify that commercial use under 110(4), even if it is for a charity, is not allowed.[2]

Further,  is important there can be no “payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers” (this, again, is to prevent the free use of copyrighted material under the “guise of charity”).

That said, Congress has commented that the exemption would not be lost if the performers, directors, or producers of the performance, instead of being paid directly “for the performance,” are paid a salary for duties encompassed by the performance (like the salaried local high school music teach conducting an otherwise qualifying performance of the “Show Choir” at the library).  

And finally…110(4) can apply whether the performance is by your library, or by an (uncompensated) third party.  The devil is always in the details, so check with a lawyer before using this exemption, but don’t forget it’s available!

Answer #4:  If your library is regularly playing lots of music or tv, you should evaluate if your library needs a license under a performing rights society such as ASCAP, SESAC, or BMI.

A “performing rights society” is an association, corporation, or other entity that licenses the public performance of nondramatic musical works on behalf of copyright owners.  They notoriously bring lawsuits against public places like bars and restaurants for failing to secure the proper licenses.

Now, this is not guidance I typically give a library, and ASCAP, SESAC, and BMI don’t make a habit of suing libraries[3].  But there’s a first time for everything, so if your library routinely has more than one radio or tv on (that doesn’t sound like a typical library, but libraries are anything but typical these days), and you are playing music on more than one radio on a regular basis, rule that need out.[4]

Answer #5:  The member’s final question addresses recording a performance at the library, and posting it online. 

As the question suggests, this is where you have to be very careful.  A performance that might be allowed under 110(4) will become an infringement if posted to the Internet or “transmitted” in any way.  Under 17 U.S.C 1101, it could even result in a claim by the performer!  So if the intent is for your library to record, stream, broadcast, or otherwise transmit the on-premises performance, the precise circumstances should be examined very carefully, and you should make sure you have the right permissions.

So, does this mean you have to force every parent lovingly recording their child’s rendition of the theme from “Moana” during Musical Story Hour to put down their phone and just watch the performance?  No.  While there may be sociological reasons to do that[5], if your library isn’t urging or facilitating the recording or transmitting, it would be enough to put in your program “Please simply enjoy the performance, and please do not transmit any recording of it.”  Basically: be able to show that you didn’t allow, contribute to, or facilitate, any infringement.

And will Disney sue the parents of a cute kid belting out a super-sweet rendition of “How Far I’ll Go[6]” at the local library?  Unless it goes viral, it’s not too likely.  But either way you’ll be able to rest easy, knowing your policy requires them to do the right thing.

Thanks for the questions!

 

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[1] Maybe they are one of those rock stars that hate libraries.  I have heard that Metallica leaves a trail of fines and broken spines in the wake of every city they play.

[2] I am of course kidding about Metallica.  Please don’t sue me, Lars!

[3] I checked the PACER database of federal law suits and could not find any cases brought by them against a library. 

[4] For more on this, see the “Ask the Lawyer” guidance titled “Transmission of a Television News Broadcast.”

[5] I am a curmudgeon about people being so busy recording a moment, they don’t actually see it.

[6] Since I have a 4-year-old, I have this song memorized.

Because libraries are guardians of the first amendment, and because there is no consistent definition of “pornography,” the answer is: NO. I cannot offer legal guidance that simply bans porn…any more than I could suggest that a public library start charging admission.  Such guidance would cut into the fundamental heart of a library’s mission. 

But there is a way to achieve your underlying objective:  Focus on civil rights.

How does a “focus on civil rights” keep porn off library computers, you ask?

Let’s start with the fundamentals: why would a library would need to consider limiting internet porn in the first place?  The answer is pretty simple.  Aside from the malware—and the abysmal amount of copyright theft perpetrated by many porn sites--[1] no one wants to work or congregate in a place where other people are watching porn.

At best, it’s icky.  At worst, it creates an atmosphere of gender-based discrimination (of any gender…of any sexual orientation…and of those who do not gender-identify, too).  So in New York, where the stakes for a sexual harassment claim have never been higher[2], providing a porn-free environment is an unquestioned goal at most places of employment[3]…including libraries.

And so the true question here is not if a library can outright restrict access to internet pornography, but rather, how can a library make sure it’s not honoring one civil right at the expense of another?   How does a library remain a beacon for the first amendment, but stand as  a bulwark of equal access and fair treatment, too?

This balance can be achieved.  The key, just like in other matters involving fundamental rights, is to have a clear, well-developed policy, applied by trained professionals, well-documented and guiding you every step of the way. 

Every library policy should be customized for its unique environment (and harmonized with other policies), but here is a quick example of the type of document I describe, designed to fit into a library code of conduct, patron access agreement, or other behavior-related policy:

The[INSERT NAME] library absolutely respects users’ rights to reliably and confidentially access content, but also has a duty to ensure that its shared community space is free of behavior that demeans, intimidates, or discriminates against patrons, other visitors, and employees.

Therefore, to ensure compliance with local, state, and federal civil rights laws, anyone using or displaying library resources in a manner that creates an atmosphere that could harass, sexually harass, or discriminate against others may be asked to modify their behavior. 

Examples that may require staff to ask you to modify behavior include, but are not limited to:

• Prominently displaying content featuring racial, gender-based, or religious invective or insults;
• Prominently displaying scenes of violence;
• Prominently displaying sexual content;
• Printing and/or prominently displaying materials in way that appears to target others.

Any request for modification, action or determination under this policy will place the highest priority on the right of patrons to access content, and will seek ways to address the concern without restricting that access.  Modification could include:

• Agreeing to move the material on another table at a less trafficked area;
• Scheduling use of a shared resource to ensure predictability of display;
• Collaborating on a solution that ensures optimal access to content as well as a safe and respectful environment for all.

In some cases, however, “modification” may simply mean a request to discontinue the behavior.  Examples include but are not limited to: deliberately leaving images of violence in a children’s area; prominently displaying sexually graphic content in full view of other patrons and employees; any activity that uses content to negatively target another person in the library.

Patrons who refuse to modify their behavior or to collaboratively resolve a concern may be found in violation of the library’s Code of Conduct and subject to restriction of privileges, per library policy.

“Prominently displaying” means the content is intentionally or incidentally visible to others, risking a hostile atmosphere. 

By focusing not on the restriction of “pornography,” but on the creation of a respectful and welcoming environment for all, a library positions itself to ensure optimal access to content, but to follow state, local, and federal civil rights laws, too.  And since one person’s anatomy textbook is another person’s porn, a policy that allows for proactive solutions, using incremental and creative adjustment, helps balance liberty with a respectful environment.

What part of first amendment jurisprudence allows this? The first amendment does prohibit the government from abridging the freedom of speech.  However, it does not guarantee that all forms of protected speech may be heard on property owned or controlled by the government. Instead, the state (just like an owner of private owner property), has “power to preserve the property under its control for the use to which it is lawfully dedicated.”  Further, as in any case “where the principal function of the property would be disrupted by expressive activity,” courts will not consider the main reading and reference area of a public library to be public forum where expression cannot be regulated.[4]

Here is an example: let’s say I am working on book about inter-generational trauma.  With only the best of intentions (writing a book exploring how the trauma of one generation can impact the next) I claim a table for myself near the reference desk, and start laying out books with pictures from the Jim Crow era.  At the next table over, a young person sees the pictures, and suddenly finds the library is not the warm, happy place it was ten minutes ago.  She gets very emotional, and the reference librarian notices.  Using the policy, the librarian could then say: “I see you are working on an important project.  Since this is a high-traffic area and these are some very stark imagines, can you consider moving to a table where you can access the material, but not risk a negative impact on others?  That would help us serve you while also making sure the reference area is welcoming to all.” 

If I say “yes,” and move, we all move on.  If I say “no,” there may be a need for further discussion, but under the library’s policies, one way or another, an adjustment is made.

How could this work with a patron accessing porn on a public computer?  The librarian states:  “This is a public area[5] that serves many people, and its environment must be respectful of our visitors and employees.  What you are viewing is not consistent with that requirement, so it cannot be displayed is this area.  Please stop now.” 

If I say “yes,” and move, we all move on.  If I say “no,” there isn’t much need for further discussion, since under the library’s policies, one way or another, an adjustment will be made.

This is what is called in first amendment jurisprudence a “time, place, and manner” restriction.  Considering the mission of the library—to serve all—a policy of keeping the common areas free of graphic violence, invective, and sexually explicit content is very reasonable…especially since most parts of a library are not considered a “public forum.”  It is the same restriction that allows librarians to ask people to speak quietly or not play music on their cell phones that others can hear.

I appreciate that this approach does require library staff to make and enforce value judgments about content—and some librarians may feel uneasy about that role.  But the essential function of libraries rests on the ability of librarians to make content-based decisions.  In fact, because they are trained to categorize and assess various types of information, librarians are some of the best-qualified people in the world to take such a burden on. 

The case Sund v. City of Wichita Falls—also called the “Heather Has Two Mommies” case—shows the importance of qualified professionals making content decisions using consistently applied, well-reasoned policy.[6] In that case, a town board tried to allow patrons to over-ride a head librarian’s decision as to where to shelve a children’s book depicting a positive, happy tale of a girl and her two mothers.  When striking down the law, the judged cited the library’s careful accession policy and the level of training required of the librarian—and then confirmed that she had the final say in shelving decisions. 

Librarians use such content discernment on a routine basis, and today’s civil rights laws demand they apply it to not only collections, but the library’s environment, as well.  A policy that is well-developed, harmonized with other policies, and the subject of routine training and practice for staff can give this responsibility a reliable formula.  Like all critical policies, such a policy should be custom-drafted and carefully considered before being approved by trustees, since if the resulting discernment is ever challenged, the board will need to stand by—or overrule—how it was applied in the field.

Balancing conflicting civil liberties requires careful analysis and diplomacy.  But at the end of the day—I’m just gonna say this—unless they work in a very unique type of place, librarians have the right to expect a workplace largely free from internet porn.[7] That freedom—and the freedom of patrons to access content without undue restriction—starts with your library’s commitment to civil rights.

Thank you for this important question.

 

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[1] The only reason I know this is because I am a copyright attorney.  No, really.

[2] See the new laws passed in 2018 about increased employer liability for sexual harassment.

[3] Obviously the sound editor at an erotic film production company hopes for a steady stream of work, but that’s the exception, not the rule.

[4] See the case Citizens for Cmty Values, Inc. v. Upper Arlington Public Library Board of Trustees, 2008 U.S. Dist LEXIS 85439 (2008), United States District Court for the Southern District of Ohio.

[5] I have no pre-emptive solution for people who bring their own laptops and are able to reserve a room, unless you have a policy that employees may enter such a room at any time, in which case my same advice applies.

[6] This case is a good read for any librarian seeking a refresher on the important of clear policy and a supportive board of trustees.  It is also very laudatory of the librarian who fought for the right of the library to properly shelve the book.

[7] I am not a judge, so I get to have a definition!  Here is it:  “Anything on the internet depicting a sex act, that comes with at least two pop-up adds.”

This question brought back a lot of memories for your “Ask the Lawyer” attorney.  

Between 2006 and 2017, I was a full-time in-house attorney on a college campus.  On April 16th, 2007, my time in higher ed was forever changed, when the entire campus froze to watch the reporting from Virginia Tech.  32 people dead.  17 wounded.

Over the years, as incident after incident occurred on schools and college campuses, my colleagues in higher education would wonder “Are we next?”[1]

I was lucky; my campus had no such incident during my time there (or since).  But I was there for the development of our active shooter response protocol, there for our on-campus trainings, and there, as an administrator, for our “incident response” trainings with local, state and federal law enforcement…getting ready for a day when we might not be lucky.

Large (and small) public institutions and facilities like schools, museums, malls, and of course libraries have been struggling with how to prepare for the day someone brings a gun and threatens or perpetrates violence on their property.  It is a horrific thing to contemplate, and a scary prospect to plan for…especially because there is a diversity of opinion as to what the best prevention and training techniques really are.

Some institutions have the benefit of mandates.  In New York, all schools must practice active shooter response, and there are laws, regulations and experts in place to guide those mandated drills.  And college campuses are mandated to prepare for emergency response.

Public libraries, on the other hand, do not have such a state-wide mandate.  Although chartered and operated in connection with a municipality, they are independent operators.  This means that though they may choose to follow whatever policy or procedure their municipality has developed for emergency response, or to adopt their own, that choice requires board approval.[2]

But the member’s precise question is: is it legal in NYS to institute a lockdown in a public library?

First, let’s clarify what is meant by “lockdown.”

Per §155.17 of Chapter 8 of New York’s Rules & Regulations: 

Lock-down means to immediately clear the hallways, lock and/or barricade doors, hide from view, and remain silent while readying a plan of evacuation as a last resort. Lock-down will only end upon physical release from the room or secured area by law enforcement.

To some people, “lockdown” (hiding, barricading) in the face of an active shooter sounds like a really good idea.  Others might prefer to run.  And still others think the best option would be to fight.

According to the New York State Division of Homeland Security and Emergency Services, depending on the situation, any of these could be the right choice.  Watch the video, “480 Seconds” at this link [3]. It depicts, in stark and practical terms, the different “best” responses, depending on an active shooter situation.  http://www.dhses.ny.gov/aware-prepare/step3.cfm

“Lockdown,” as defined in the NYS Education Law, was determined to be the best option for schools because they house a large, vulnerable population of minors.  While many of us only hear about this procedure through our kids (as we try to conceal our terror), school librarians know first-hand that the drills our kids do are only a small part of a system that requires:

• extensive site analysis;
• the creation building safety teams;
• designation of emergency gathering spaces;
• communications plans; and
• extensive training of staff. [4]

Any lockdown plan should be this well-developed, because as “480 Seconds” shows, sheltering in a secure place is not the only response to an active shooter situation.  Further, even in a place with a lockdown plan, responses will vary by building type, function, and population served (consideration of people with different disabilities, for instance, requires continually renewed attention).  Given certain variables, a lockdown procedure might be the best option, but even once that has been determined, ensuring doors can be secured, signage is properly posted, and staff are trained, are all critical elements of the plan.

So, is it legal to institute a lockdown procedure in a public library?  Yes. Library boards can (and should [5]) pass emergency response policies, include active shooter policies, and a lockdown plan might be determined to be the best response.  That said, unlike schools entrusted with minors, libraries serve a large population of independent, autonomous adults.  Unlike law enforcement responding at the scene, a staff directive to stay in place will only have the force of library policy…which is different from an order by law enforcement [6].  A person who wants to leave (and whose biology is telling them they MUST leave) might do so.

For me, the most important aspect of this question is not if a lockdown policy at a public library is “legal,” but how a public library develops its active shooter response plan and trains its staff.  This can be no cut-and-paste job; it is a work for a credentialed and experienced expert.  There is grant money and aid out there for not-for-profit libraries to seek this critical input.  And in many places, simply reaching out to local government can put you in touch with all the resources you need. 

Just like “480 Seconds,” the services of an expert [7] will help your library apply the collective wisdom about active shooter situations to the somber but vital act of planning for an actual situation. 

We can never be truly ready for an active shooter incident, but we can be prepared.  Lockdown might be part of that preparation.  Thank you for this important question.

 

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[1] It was probably a false sense of security, but these were the times when I was glad to have ROTC on campus.

[2] There is one exception to this: a public library that rents its property may be required, in its lease, to follow the rules of its Landlord. But that would still mean the board had approved the terms of the lease.

[3] This video is not graphic, but it is very serious.  I suggest you not watch it at your library unless it is part of an in-depth and well-considered training on active shooter response, led by a credentialed and experienced expert (local law enforcement should be able to assist in finding that person).

[4] See NYS Education Law §2801-a.

[5] An emergency response plan, along with plans for an active shooter, is listed as a recommended policy in the NY Library Trustees’ Association’s 2018 Trustee Handbook, page 115.

[6] Of course, some libraries have private security, or coordinate with law enforcement.  If that is the case for your library, their training and level authority must be incorporated into your plan, and that may change the dynamic.

[7] This is very serious: your plan and training should be put in place using a contracted, person with established credentials and experience writing and training on emergency preparedness and active shooter response.  There are many accredited and recommended programs for this.  For a public library, this would be through the usual procurement process.

On the surface, these questions are very simple, since they boil down to: what are the laws impacting the flow of data comprising patron debt records (bills, fines, referral to collections), and who needs to follow those laws?

Of course, underneath that simplicity, the questions are mission-critical.  Libraries and library systems need to follow the relevant laws without error, and to ensure that while doing so, they reinforce the mission of their institutions.[1]

For this question, we’ll assume “patron account debts” as referred to by the member, are the four most typical “cost” records that a library maintains about patrons:

• Late fee records
• Replacement/damage fee records
• Hold fee records, and
• Ancillary costs records (duplication fees, etc.). 

Expressly excluded from this list of “patron account debts,” and from consideration in this answer, is debt related to deliberate property damage, personal injury, or express [2] contractual liability.  

And with those specifications in mind, here we go.

What laws or limits should libraries consider when storing and collecting patron account debts? 

To get to the important details in this question, we have to start with the fundamentals.

The first legal consideration when storing and collecting patron account debts is the nature of your library or library system, which is governed by a combination of the New York State Education Law (“Ed Law”), and the New York Not-For-Profit Corporations Law (“NFPC Law”), your charter, and bylaws.[3]

These laws and documents impact how your library or system 1) owns property; 2) sets the terms for that property to be borrowed; 3) maintains records regarding such activity; and 4) (if relevant) contracts with third parties (such as collection agencies or data repositories) to manage them.

The second legal consideration is the nature of the patron debts: are they set by law or regulation (like a tax or permit fee), or are they the by-product of a policy or agreement (like a service contract)?

The Ed Law and the NYPC Law, and related regulations, do not prescribe late fees, replacement fees, hold fees, or ancillary fees for patrons.  Rather, the Ed Law emphasizes that use of a library should be without costs to its community, as can be seen in this excerpt from Ed Law Section 253:

The term “public” library as used in this chapter shall be construed to mean a library, other than professional, technical or public school library, established for free public purposes by official action of a municipality or district or the legislature, where the whole interests belong to the public; the term “association” library shall be construed to mean a library established and controlled, in whole or in part, by a group of private individuals operating as an association, close corporation or as trustees under the provisions of a will or deed of trust; and the term “free” as applied to a library shall be construed to mean a library maintained for the benefit and free use on equal terms of all the people of the community in which the library is located. [emphasis added]

This “free” access within the area of service is also emphasized in Ed Law Section 262, which states:

Every library established under section two hundred fifty-five of this chapter shall be forever free to the inhabitants of the municipality or district or Indian reservation, which establishes it, subject always to rules of the library trustees who shall have authority to exclude any person who wilfully [sic] violates such rules; and the trustees may, under such conditions as they think expedient, extend the privileges of the library to persons living outside such municipality or district or Indian reservation.

That said, state law does contemplate the need for libraries to incentivize the return of books, and in solving that problem, it does not mess around.  As provided in Ed Law Section 265:

Whoever wilfully [sic] detains any book, newspaper, magazine, pamphlet, manuscript or other property belonging to any public or incorporated library, reading-room, museum or other educational institution, for thirty days after notice in writing to return the same, given after the expiration of the time which by the rules of such institution, such article or other property may be kept, 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, and the said notice shall bear on its face a copy of this section.

Forgive me if you find this boring, but I find it fascinating: New York State law’s only mention of fines in the context of accessing library services is a section that authorizes libraries to work with local law enforcement to impose fines and enforce the return of books through criminal prosecution.  Meanwhile, the law makes NO mention of collection of late fees or penalties per policy or through civil debt collection.[4]

Although Ed Law 265 is the only legislation to prescribe a remedy for failure to timely return library materials, I am not aware of any public or association library that actively uses it, although this ability has been on the books in its current form since 1950.[5]

So if the debt a library patron owes a library isn’t a “fine” under Ed Law Section 265 (or up to six months in jail!), what is it?

Rather than pursue the “265” option, most libraries have elected to use the  authority of their boards under Ed Law 226, and the NFPC Law, to simply condition the acquisition of a library card (and thus, access to core library services) on the patron’s knowing consent to a voluntary system of fines and penalties.   In other words, patrons agree to pay money in return for the ongoing privilege of borrowing books.   

While recent developments under consumer protection laws characterize it otherwise,[6] this voluntary, quid-pro-quo condition of otherwise free library access is viewed by the law as “contractual.”

Library boards, empowered by the law to set policy for the proper functioning of the library, use this contractual system to:

• Incentivize return of assets (late fees);
• Replace items that are not returned (replacement costs), and
• Offset extras that are not part of a library’s core services (access to on-site photocopiers; hold fees for out-of-system interlibrary loans).[7]

This was a long answer to this second consideration, but it is critical.  What is the nature of patron debt?  It’s contractual.  This is what enables library debt to be farmed out for collections, or certain patron debt to be discharged in bankruptcy.  This will become relevant further into our analysis.

The third legal consideration is that every record related to patron debt is subject to the requirements of New York’s CPLR 4509, which means that—other than as needed for the proper functioning of the library—the records must be kept confidential.  They are just as private as circulation records and internet searches.

The fourth legal consideration is the medium of the record: hard copy, or electronic (or both)? In the event the record is electronic, the SHIELD ACT, which went into effect this March, may govern the keeper’s security and data breach requirements.

And finally, the fifth legal consideration is: what are the parameters for enforcing or collecting on the debt, anyway?  A combination of state and federal law, together with the library/system’s policy.  We’ll tackle this factor in-depth in the “diagnostic” section, below.

Which brings us to the member’s next two questions:

Who is responsible for compliance: the library where a patron is registered (they set their own blocking policies), or the system maintaining the records?

Similarly, does the library system (who manages an ILS on behalf of its member libraries) have the authority over library records, including that of purging library patron accounts, according to local policy? 

As you can probably tell by the remaining length of this “Ask the Lawyer”, there is not one, simple answer to either of these questions.  In fact, there are multiple answers, controlled by multiple factors.

Here is a process for sorting those factors out, and ensuring your library or system is enforcing fines and fees within the boundaries of the law.

Does the library or library system avail itself of Ed Law 265?

Are you one of the rare institutions actually using (not just threatening to use) law enforcement to assist with returns?  If “yes,” there should be a written policy for sending out notices and coordinating with local law enforcement. 

Also, if you do this, please write me at adams@stephaniecoleadams.com, because it would be really interesting to hear about your experience, you bibliophilic unicorn.

If the answer is “no” …

What document shows the patron has expressly agreed to pay the debt your library is charging as a condition of having a library card?

This would be the policies or terms the patron consented to follow when they signed up for their card.  It should be a clear statement of fines and fees that patrons expressly agree to, and the patron’s express consent to that agreement (signified by a signature or authenticable electronic signature) should be demonstrable at any later date the library or system needs to enforce the debt.  In some systems, this might even be covered in the member agreement (or a policy).

If the conditions showing a clear consent to fees aren’t clearly set forth in one document, or present at the time they are incurred (in a way that will show the patron knowingly incurred the cost), that should be corrected.

Many boards and staff inherited fee structures from previous administrations.  It is wise to revisit the compliance and function of fine policies and the systems for enforcing them no less than every five years.  This is particularly true since in the last five years, there have been changes to how fines may be collected, and changes to laws regarding maintenance of electronic records. 

Is that “debt agreement” with a single library, or an entire system serving that library? Whoever the agreement is with (the “creditor”) is the entity directly responsible for how the debt is enforced and related legal compliance.

This is important to clarify.  If the debt agreement is with a system, that system is the “creditor” and the system should be the entity maintaining the information, not the patron’s main library.  On the flip side, if the debt agreement is solely with a library (and the system has separate terms, or there is no system involved) that library is the creditor, and is the party responsible for the information’s use and maintenance.  The documentation related to fees, and the enabling policies, should leave no room for ambiguity in this.

This does not mean that any library within a system needs to conform its fine policy to all the others in that system.  Rather, within the bounds of the law, it means that a system enforcing multiple member library policies must ensure that patrons have notice of the different fee structures they might be agreeing to, before the imposition of a fee.

Wait! What about library systems that maintain overdue records and enforce collections on behalf of member libraries?  Or libraries and systems that contract those services out.

This is where terminology becomes important.  In a policy to charge fees for late books and replacements, a patron becomes a “debtor” (an entity who owes money to another entity).  The entity they owe it to (the library or system) is the “creditor.”  Meanwhile, any third party hired to track the information related to the debt on behalf of the creditor is a “contractor.”

It is the creditor—the entity situated to assert a debt in a court of law—who is responsible for the proper management of debt-related information. While they can retain a contractor to manage the database, and even perform related functions (sending out notices, making calls to encourage returns), they remain the party ultimately responsible for use and maintenance of the information.  They are also the sole party empowered to sign over the authority to collect the debt to an agent (a “collection agency”).[8]

In New York, some library systems are the creditors, but some (if its founding documents, the membership agreement, and policies provide for it) are just the contractors for their member libraries. The ability to set this relationship up, and to effect the resulting responsibility and authority, starts with the entity type and its contractual affiliations, which will vary from system to system, and will change based on charter, bylaws, and strategic decisions. 

This is why founding documents are always the “first legal consideration.”

What policy at the entity required to maintain the information (the creditor library or system) clearly sets out how debt-related information is generated, maintained, used, and purged?

It can have any number of names, but this policy should reference the terms the patrons have agreed to, all relevant laws, and be tied into the institution’s policy for data breach.  If the creditor uses a third party to store the data, or a collection agency, baseline criteria for those contracts is also part of this answer.  Further, the policy should specifically address how long fee records are maintained after they are incurred, and under what terms patrons might be forever barred from borrowing privileges based on such fees.

For libraries and systems that use fees, below is a sample policy that covers the different considerations of charging fees.  Variable items are in yellow, critical items (meaning a library/system should have a clear policy and provision regarding this) are in red:

TEMPLATE Policy Regarding Terms, Records, and Payment of Patron Fees

Terms of Borrowing

As a condition of borrowing privileges, patrons agree to fees as set forth in [all documents listing a fee].

Education Law 265

The [XXX library/system] [does/does not] use the remedies allowed by Education Law 265 for the return of late items.

Threshold for Suspension of Borrowing

Patrons with over [$amount] of unpaid fees will have their borrowing privileged suspended.

Fee Records

Information regarding fees is housed on [place/entity housing information].

The security provision for [place] are [insert].

[Place] is only accessible to trained employees of [institution and any affiliates who must access it].

Notice of fees owed will only be sent out via sealed envelope sent via USPS, to the email of record of the patron, or provided on a printed paper upon the patron’s request in person. 

Information related to fines shall not be conveyed over the phone unless as an ADA accommodation.

Collections

Once outstanding fees reach [$threshold amount], a third-party collection agency may be used.

The contract for any collection agency shall include a commitment to follow all relevant consumer protection laws and [insert priorities of the library regarding contact with patrons].

To ensure confidentiality of patron records as required by CPLR 4509, no such agency shall be authorized to contact patrons at their residence in person or via the telephone. 

The [library/system] shall cease collection efforts as to any patron who informs the library that they have filed bankruptcy.  To re-institute borrowing privileges during bankruptcy, the patron should send a copy of the bankruptcy filing to the library. In the event new charges after the bankruptcy filing again reach the threshold for suspending borrowing privileges, privileges will be suspended.

Other than trained employees, and any third-party collection agency, only the patron and those duly authorized per CPLR 4509 may access records related to patron fees.  Collection notices may only be sent via USPS, and to the email of record to the patron; contact may only be via phone if initiated by the patron.

In the event a patron fee record is authorized or accessed in violation of this policy, the library/system will take all appropriate corrective action, and if required, will follow the notification procedures in the library/system’s policy regarding data breach.

Payment of fees

Fees will only be accepted by the [library/system] per the relevant fiscal controls, as set out in [reference fiscal control policy/ies, or the terms in a collection agency contract].

Accounting

Unpaid fees are listed as “receivables” and accounted for in book-keeping as required by GAGAS.

Unpaid fees are no longer collectible in a court of law six (6) years after they are incurred, and thus are written off the books after six (6) years.

Record Purge

After unpaid fees are written off the books, the library will purge all print and electronic records of such fees, except for preserving de-identified data for purposes of assessing library operations.

Permanent Loss of Privileges

Patrons responsible for [$amount] of unpaid fees (based on any combination of late fees, replacement costs, or other unpaid fees), unless the debt is discharged in bankruptcy, will be permanently barred from applying for another card from the [library/system], and such record shall be maintained in perpetuity.

 

Template language, of course, is only provided so it can be conformed to the unique position, practices, and goals of your library/system.  Within the scope set out above, there is a lot of latitude to do things in a way that reflects the unique needs of your institution. What is important is that there be clarity about the use of fees, and how they are managed.  Further, institutions placing a high priority on collectability of fines should have the full suite of language reviewed by their lawyer annually.

What policy or standard operating procedure at an entity NOT required to maintain the information, but accessing it for customer service, clearly sets out how debt-related information is accessed and not improperly shared?

For collaborating entities with access but not responsibility for fee records (for instance, a member library within a system, or a system who must follow a member’s policy) compliance with a clear policy or SOP should be part of routine training for employees and volunteers.

Standard Operating Procedure Regarding Confidentiality of Patron Fees

The [XXX library/system] maintains confidential data regarding patron fees, including late fees and hold fees, on a password-protected database only available to trained employees. 

The [adopting institution] accesses and adds to this information to assist patrons in accessing and addressing issues related to fees.

Other than trained employees, only the patron and those duly authorized per CPLR 4509 may access records related to a patron’s fees.

Notice of fees owed will only be sent out via sealed envelope sent via USPS, to the email of record to the patron, or provided on a printed paper upon the patron’s request in person.  Information related to fines shall not be conveyed over the phone unless as an ADA accommodation.

In the event a patron fee record is authorized or accessed in violation of this procedure, the [adopting institution] will take all appropriate corrective action, and if required, will let [XXX library system] know, so it can follow the notification procedures in the [XXXlibrary/system]’s policy regarding data breach.

Fees will only be collected per the attached [relevant fiscal controls/policy/member agreement].

Employees are trained on this standard operating procedure prior to doing any work related to fees, and not less than annually. 

This template language, is only provided to inspire a standard operating procedure that addresses critical details; any final SOP should be conformed to the unique practices of your library and system.

If a collection agency is used to encourage returns and enforce late fees, who retains the agency and monitors its performance?

This should only be the entity expressly authorized by the patron agreement to collect the debt (the “creditor”).

Is there a written policy for how the library or system accounts for patron debt in its books?  When, if ever, is that debt written off?

Patron debt is a “receivable,” meaning it is on the books as money owed to the library, until the debt is forgiven or written off.[9]

How long is a patron’s debt enforceable?

In New York, a debt owed per a contract is enforceable for six years, unless otherwise provided.[10]  Unless reduced to a judgment, efforts to collect debts that are enforceable run the risk of being considered unfair debt collection practices.[11]  However, a library can continue to condition borrowing privileges on truing up past accounts and returning/replacing lost items, even if they are not collectible in a court of law.

Does the record-keeping policy of the library or system tracking the patron debt continue the consequences for the debt after it is written off?  Or does the policy not write off the debt, ever? 

There is no “right” answer here, but there should be mission-sensitive harmony between policies and how the library is accounting for the debt.  If a 1995 debt was written off the books in 2005, it might not make sense to enforce the debt’s consequences past 2015.  Figuring this out is a great excuse for a library’s treasurer, accountant, and director to go out for lunch.

The final, final answers to the member’s question are therefore:

1) Every library and library system will have a different array of answers to the member’s questions. 

2) The key take-away is that to ensure legal compliance about managing patron debt, an institution must address the above-listed considerations.

Coda

OK. I said I wasn't going to say anything, but I have to.

Anyone who reads the law can see that use of late fees is not a practice baked into the legal roots of public and association libraries.  Rather, libraries in New York State are expressly created as free institutions—institutions assured the collaboration of law enforcement when there is an abuse of their free resources.

I appreciate that viewing the problem of unreturned books as a “criminal” matter can pose some concern for libraries.  However, as a former criminal defense attorney, and now a business attorney, I can tell you that in many ways, a system that caps fines at $25 and holds the threat of jail time for anyone—even those who can easily afford larger library fees than some—is actually comparatively egalitarian. 

That said, the fact that Education Law 265 is not more utilized shows that at some point, critical connections within communities (libraries and municipal prosecuting attorneys) were not forged to empower this approach. Rather, it seems that many libraries resorted to fines and collection operations, monetizing the human tendency to forget to return library books. 

Over time, these fees were regarded as a revenue stream.  In some places, it might even supplement budgets that should be fully supplied by sponsoring municipalities.[12]

I see this failure to use 265 as a failing of the law.  And as someone who has devoted their adult life to the law, that is disappointing to see. 

That said, I take heart that in 2015, 30 states’ Attorneys General took action to ensure library fees could no longer impact people’s credit, limiting the toolbox of collection agencies enforcing library fees.[13] And I am glad many libraries are taking fresh, critical looks at how to encourage responsible library use and good stewardship of library assets, without resorting to financial fees.  

The plain and repeated language in New York’s Education Law states that public and association libraries are “free” to their communities.  Compliance with that language should be the aim of every public and association library, even as they exercise their authority, also created by law, to protect their assets and serve their unique areas of service.

 

 

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[1] Much data-driven, well-researched, and passionate content has been generated about libraries’ use of fines and penalties.  This answer just sticks to using them with an eye to legal compliance.

[2] Meaning the debt is based on a specific, written contract with the precise amount owed set forth and signed by the patron.

[3] This structure is more fully set forth in answer like this one: Legal Requirements for Selling Library Building.

[4] Since the maximum imprisonment term of six months makes the detention of a library book a misdemeanor, this remedy is “criminal”.

[5] Further, when one looks at the centralized guidance for operating a public or free association library in New York, the issue of fines and fees is not substantively addressed.  While the excellent guidance here: http://www.nysl.nysed.gov/libdev/helpful/helpful.pdf states that policies, including those about fines, should be well-thought out, there is no background or guidance on fines. 

[6] Without turning this into a law review article, I’ll simply say that since 2015, credit reporting agencies have not been allowed to add library fines to credit reports, because they are not viewed as “contractual” (see the settlement terms found at https://ag.ny.gov/pdfs/CRA%20Agreement%20Fully%20Executed%203.8.15.pdf).  That said, in the legal biz, the conditioning of access upon the agreement to pay fines is “contractual,” and based on that construct, some libraries do use collection agencies to sue for unpaid fees.

[7] It has been m.y conclusion that hold fees within cooperative library systems are contrary to relevant law and regulations.  But that’s a column for another day.

[8] Of course, collection agency contracts should have protections and assurances requiring the agent to follow the law. That is partially to protect the creditor in the event their agent violates the law (and can also function to protect the library-patron relationship).

[9] An illustration of how such receivables are viewed under accounting procedures for public libraries can be found in this 2014 NYS Comptroller’s audit of Oswego Public Library: https://www.osc.state.ny.us/localgov/audits/libraries/2014/oswego_sd.pdf

[10] See Section 213 of New York’s Civil Procedure Laws and Rules.  The limitation period to use Ed Law 265 is two years, but since 265 doesn’t seem like a popular option, we’ll just stick that fact in a footnote.

[11] The Fair Debt Collection Practices Act (“FDCPA”) prohibits the use of any false, deceptive, or misleading representation or means in connection with the collection of any debt (see 15 U.S.C.S. § 1692e).

[12] In many ways, it is akin to the addiction municipalities have to municipal court fees.  If you ever need to hear a good rant, ask me about that one.

[13] The legal action discussed in footnote 7.

When considering how to address concerns about registered sex offenders using the library, there are several factors that must be considered at once:

Factor 1: Civil rights

In New York it is against the law to take adverse action against someone simply because of a past conviction, including a conviction leading to them being a registered sex offender. Therefore, preemptive action barring or restricting a library user with that type of criminal record cannot be taken.

That said, if a person has limits on where they can go as a result of sentencing or parole conditions, and those terms are violated, that is a different matter, and such violation should be immediately reported to the appropriate authority as deemed best by the leadership of the library.  So long as the report is in furtherance of library priorities, this is consistent with the legal requirement that library records be kept confidential.

Factor 2: Safety

New York State created the Sex Offender Registry tool to enable communities' awareness of past convictions so they have the information to take allowable actions to protect themselves.  If a library or another organization open to the public with specific areas and programming for children and vulnerable populations believes there is a person who may abuse or exploit those populations (whether they are a convicted sex offender, a person known to have committed another type of crime, or are just a creeper acting inappropriately), a safety plan should be developed (or enhanced).

This safety plan should include having clear policies regarding unaccompanied minors in the library, clear signage setting the terms and rules for different rooms and sections in the library, adequate staffing and security measures to ensure all areas of the library are routinely visited or monitored, a clear protocol for recording incidents and sharing concerns (coordinated with the Code of Conduct), well-defined relationships with local law enforcement to ensure there is a known resource in case the library has concerns, and adequate training for employees so they can recognize and have rehearsed responses to situations that may pose a safety risk, including but not limited to actions by registered sex offenders.

Factor 3: Long-Range Planning

For many libraries with older or nook-and-cranny facilities, or with small budgets, the full use of all the safety plan features I list above are not immediately achievable.  For this reason, long-range plans should include these items so they can be budgeted and planned for.

Factor 4: Coping with Fear

Aside from empowering people to take whatever precautions they are allowed to use if they live or work near someone on the Registry, the Registry creates a lot of fear.  While information can be powerful, fear can be toxic.  For a library facing the scenario in the question, review current the safety plan, identify enhancements that can help employees feel confident about using it, and discuss the way in which the library will honor the civil rights of the patron, while taking policy-driven precautions.

And, returning to the specific question: if the knowledge of a person's past record is posing a concern to certain members of the staff, leadership needs to assess and confirm how it will interface with that patron.  While denying services simply on the basis of a previous conviction is not allowed, there is nothing that says there can't be a protocol that certain patrons are never assisted one-on-one – so long as the library has adequate staffing to ensure that such a policy never leads to denial of service.

NOTE: It is quite possible that an employee with past trauma may experience significant difficulty serving a known registered sex offender.  If a person has anxiety, depression, or another disability impacted by serving a certain type of patron, that should be assessed promptly as a disability accommodation request.

I am writing this on May 23, 2023. 

It has been well over a year since I started working with school district libraries and regional BOCES on the ethics, law, and policy considerations of school library collection concerns.[1]

In that time, I have worked with many on the front lines of this issue, and heard their stories: librarians worried their school's policies aren't up to the challenge, librarians enduring insults and threats, and librarians developing contingency plans for the day when the anger is directed at their school library.

The sessions I have worked on have focused on different ways to be prepared: 

• Be certain of your ethics
• Know the laws that pertain to your library
• Know your district's procedures
• If necessary, update your district's policies
• Build a team that is ready to respond
• Have a plan for that team so they work seamlessly
• Memorize an "elevator speech" on intellectual freedom
• Keep calm.

The member's question addresses a factor that cuts across every facet of preparation: be ready to play offense. 

To reiterate, the member asks: [Do] school librarians facing these kinds of accusations have any recourse to bring action against the organization or individuals within the organization making these kinds of possibly slanderous and libelous accusations[?]

The answer is: YES.

Some of the more possible legal tactics are listed below, along with tips on when a librarian should reach out to their own personal lawyer.

A few disclaimers, and tips for being ready to employ these possible tactics, come next.

Possible Legal Tactics

If a school librarian is wrongly accused of a crime, or of incompetence at their job, that can be grounds for a claim of defamation (slander or libel, depending on how expressed).

If a school librarian is subjected to acts which alarm or seriously annoy them, and serve no legitimate purpose, there can be grounds for a harassment claim and protective order.

If social media is used to attack a librarian's character, or to abuse or stalk them, there can be grounds for account suspension and other remedies.

If a school librarian is subjected to abusive or negative comments regarding gender, sexual orientation, race, or religion that create a hostile environment, and after a complaint, nothing is done to stop the behavior, it can be a violation of the New York Human Rights law and federal civil rights laws.

If a school librarian is subjected to a coordinated attack by a registered charitable organization or PAC in violation of formation documents or state/federal law, the organization's actions can be reported to the Attorney General or other regulatory authority.[2]

If a school librarians' image is used to raise funds and/or to agitate people into donating money or for other commercial purposes, there can be grounds for a case based on misuse of the librarian's right to personality.

If a school librarian is subject to abuse or conduct that leads to stress-induced workplace injury, they can bring a claim for worker's compensation.

If a school librarian raises concerns regarding harassment, abuse and safety, and is subject to retaliation for raising such concerns, such retaliation could be the basis of a claim based on violation of state and/or federal labor law.

If a school librarian's employment is threatened or ended due to wrongful accusations, the wrongful accusations can be addressed via a combination of legal claims.[3]

For every possible "cause of action" (the items in bold) listed above, there is a precise formula, deadline, and basis for damages that will require careful analysis of the facts.  For this reason, obtaining timely and competent legal advice is essential.

 

A Disclaimer

Every one of the above-listed "causes of action"--and more--can be used to fight abuse and harassment based on performance of a school librarian's work...if the right elements are present.  That said, make no mistake: 

• A person or group who thinks a particular book shouldn't be in a library has a right to state their opinion;
• A person or group who thinks a particular book is harmful may have a right to use policy and procedure to challenge that book within a library's catalog;
• A person or group who has a bona fide belief they have witnessed criminal behavior has a right to report it.

This is the United States of America, and we are in the mighty State of New York.  If a person wants to say they don't like a book--and even if they want to say they don't like that pesky librarian--they get to say that.[4]

That said, a person who uses their voice and power to defame, harass, threaten, and injure[5] a school librarian may have to face the consequences.

Being Ready to Bring Consequences

To assess if advocacy or self-expression by a person or group protesting books in the library crosses a line, a school librarian should seek the opinion of an attorney.[6]

This attorney does not need to be an expert in First Amendment jurisprudence, Labor Law, or Education Law...but should have some experience in handling significant matters related to the tactic being explored (or at least a willingness to roll up their sleeves and do serious research[7]), and be ready to assess the full facts of what the librarian is dealing with. 

What does this assessment look like? School librarians, once you retain an attorney through a written retainer agreement,[8] be ready for that attorney to have to spend up to ten or more hours gathering information, researching, and developing an array of options.[9]  The lawyer should review the policies and procedures that create the playing field for the drama unfolding before deciding on a course of action[10] (assessing the viability of legal claims should not be a hasty exercise).  And when the initial assessment is complete, expect a written opinion setting out their options, so you can make an informed decision before the attorney takes any action.[11]

In addition to exploring claims a school librarian can bring, some of the above-listed items are relief the employer may be obligated to bring...meaning the librarian's lawyer should be ready to articulate the strong "expectation"[12] that the school or district will go to bat to protect the rights and safety of their employee.  A district or school does not need to stand idly by when its librarian is under attack--and in many cases, the options listed above are available to the school, as well as the librarian.

Whenever possible, the fight for intellectual freedom is not a battle to wage alone!

Which brings us back to our other tactics:

• Be certain of your ethics
• Know the laws that pertain to your library
• Know your district's procedures
• If necessary, update your district's policies
• Build a team that is ready to respond
• Have a plan for that team so they work seamlessly
• Memorize an "elevator speech" on intellectual freedom
• Keep calm.

All of these can help if the legal tactics above need to be utilized. All of these can help if you need to decide that the best defense might be an offense. 

So: [Do] school librarians facing these kinds of accusations have any recourse...?

You bet they do.

Thank you for an excellent question.

 

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[1] Presentations include: Wayne-Finger Lakes BOCES on March 2, 2022; Southern Adirondack Library System on March 11, 2022; Monroe County Library System on March 21, 2022.  Many thanks to the school district library system directors who invited me into their space for these events, and many thanks to the school librarians for their courage and commitment during difficult times.

[2] Such as the Internal Revenue Service.

[3] "Combination of claims" is my catch-all for a contract violation, policy violation, union grievance, random legal violation, etc.

[4] The First Amendment: "Making no one happy since 1791."  Ah, democracy.

[5] "Injure" in the legal sense, meaning a "tort," not just a physical injury.

[6] By this, I don't mean the district's attorney, or even the local BOCES attorney (although they should be helpful, too).  By this, I mean an attorney who is 100% only concerned with the rights and interests of that particular librarian.  To find that attorney, contact your area's local bar association, or ask for a referral from a trusted attorney who practices in another area of law (attorneys like to refer people to other attorneys who can provide good assistance).  If you are worried about costs, see footnote #10.

[7] Did you find a newbie?  My advice is to never write off any attorney willing to admit they don't have extensive experience IF they are willing to connect with a mentor and/or do the research to develop experience in a particular area or law.  Just make sure they don't charge you too much for learning on the job!

[8] Yes: a written retainer agreement.  Not informal advice from your cousin the lawyer, or a third-year law student, but someone with malpractice insurance who gives you a WRITTEN opinion you can rely on.

[9] For example, the attorney for a school librarian being bullied on social media should assess: 1) is this something the school district's attorney should handle? 2) Is there a union that should be fighting for the librarian? 3) Is there relevant school policy that should be enforced? 4) Are the issues causing or contributing to harassment, abuse, threats, or a medical condition? 5) Is social media a factor?  --Just to name a few.

[10] This part sounds boring, but it is vital.  For an example of how such tactical considerations coalesce, see https://pen.org/wp-content/uploads/2023/05/1-Complaint.pdf.

[11] As I have written before, if you are a librarian concerned that a right to read issue could impact their job, and those hours of attorney work are unaffordable, contact the Merritt Fund.

[12] Did I say "expectation?" I mean "clearly written demand."

Libraries are service-intensive environments, which means they depend on their employees to report to work. However, since so much depends on staff, libraries are also wise to give their employees the tools for self-care and a proper work-life balance. A PTO policy is a great way to facilitate this.

What is “PTO?” Put simply, PTO is a finite amount of paid time off work (scheduled or unscheduled), to be used for vacation, short illnesses, “mental health days,” or whatever else is needed (note: often, bereavement is excluded). By not dividing time off into distinct types, PTO enhances employee privacy and flexibility—while decreasing the administrative burden of tracking the type of time.

The increasing use of PTO also makes sense as the ADA, the FMLA, and the upcoming New York Paid Family Leave Act have changed the landscape of medically-related time off.

Before we get to the heart of the member’s question, let’s start with some crucial basics. Under NY labor law, employers must have a written policy (or policies) governing sick leave, vacation, personal leave, and holidays. [1] Under that law, as governed by the policy, the value of these “wage supplements” must be paid out at termination.

That said, conditions can be put on the terms of these “supplements”; according to the DOL the amount of time that can be cashed out “depends upon the terms of the vacation and/or resignation policy.”

This guidance is backed up by case law: New York courts [2] have held that the required policies about PTO can specify that employees lose accrued benefits if such loss is a condition of the policy.

Among other things, conditions in PTO policies may cover the following:

• How PTO accrues (annual, or more incremental);

• How eligibility and earned amounts are governed (for instance, part-time vs. full-time, or based on years of service);

• How much PTO can be paid out at termination;

• If eligibility for payout survives termination for misconduct;

• How “scheduled” and “unscheduled” (sick, emergency meeting, etc.) PTO is granted;

• If a certain amount of reasonable notice before quitting is required to get the payout;

• If a restriction on the number of employees using PTO at once is needed (this is critical for service-intensive environments like libraries).

In addition, any transitional/new policy can (and should) expressly address already accrued wage supplements (for instance, converting any unused vacation to PTO, or paying it out). As the member shows sensitivity to in their question, the new policy should never nullify wage supplements already accrued.

So, here we are, at the heart of the member’s question: can the amount of PTO cashed out at termination be pro-rated based on the time of year the resignation happens? The answer is: Once given, PTO should not be clawed back based on a variable factors, even those factors are set out in the policy. However, the solution is just as the member posits (and as is listed in the third bullet, above): uniformly capping the amount to be paid out, and applying it without fail. [3]

IMPORTANT CONSIDERATION

Of course, developing a PTO policy does not happen in a vacuum. Aside from the recruitment, retention, and employee wellness objectives, a library considering transitioning to PTO needs to consider:

• The nature of the library (public, private, part of a larger entity, etc.);

• The bylaws and role of any board policy or committee (for instance, if there is a personnel or HR committee, this topic would be of interest to them);

• Any union contracts or other contractual obligations at play;

• The full suite of employee benefit policies, and the recruitment, development, and employee retention and compliance goals they serve;

• The budget impact of any changes.

Once a library arrives at draft policy, prior to it being enacted, a lawyer should review the policy to ensure it is compliant, and works well with related legal obligations, contracts, policies and procedures. Further, it is ideal if the policy is reviewed by the treasurer, and/or the person preparing the budget, and/or the person who files any tax forms on behalf of the entity. I’m no accountant, but I know PTO is logged in a specific way on balance sheets, and it can have an impact on financial statements.

So once you have your draft PTO policy, invite your lawyer, your treasurer, and your accountant (there’s a joke in there somewhere, I know), over for a quick cup of coffee, and make sure everyone says you’re ready to launch!

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[1] Section 195.5 of the Labor Law states: Every employer shall notify his employees in writing or by publicly posting the employer's policy on sick leave, vacation, personal leave, holidays and hours.

[2] [See Glenville Gage Company, Inc. v. Industrial Board of Appeals of the State of New York, Department of Labor, 70 AD2d 283 (3d Dept 1979) affd, 52 NY2d 777 (1980).]

[3] PTO can also be given on a more incremental basis, but this nullifies some of the flexibility benefits it can bring. That said, the policy should consider when an employee first qualifies, and if starting employees get a pro-rated amount based on their start date.