Policy

It makes sense that “Ask the Lawyer” gets a lot of Americans with Disabilities Act (“ADA”) related questions.  After all, both the ADA and libraries work to reduce barriers—barriers to information, barriers to education, and barriers to services/employment.   

The issue of fragrance sensitivity and ADA compliance brings unique challenges. 

For people living with this disability, the stakes are high: itching, burning, sneezing, rash, nausea, headache, and breathing problems can all result from exposure to even small amounts of fragrance in the air.  And there is no reliable way to predict what precise product might carry the triggering chemical, scent, or compound.[1]

To drill down into the member’s question, if the sole concern the patron has raised has been about access to the bathroom, then it may be that this sole adjustment was sufficient.  However, I have found it is best to work through ADA accommodation issues from a broader perspective, by asking: within attainable, affordable and (thus) reasonable measures, are we doing all we can to reduce barriers to access?

In a bathroom, this could be limited to removing a scented air freshener, as the member has done.  However, it could be that in addition to the air freshener, particular cleaning products, ambient scent entering the bathroom via the air ducts, and other fragrances (some of them on people) are invading the space and triggering the negative impacts.  In that case, the key is to reduce all fragrances in the space (within the bounds of what is “reasonable”), perhaps by:

• changing cleaning products
• changing the HVAC system
• having a scent-free policy

--all of which could be considered an accommodation under the ADA.

Not all of these accommodations, however, are automatically “reasonable.”  Switching cleaning supplies could require a negotiation under the standing contract with a professional cleaner—or could be as easy as selecting fragrance-free products.  A small library with an annual budget of $150,000.00 would find it too expensive to re-route the HVAC at a cost of $200,000.00—but perhaps could install a small window fan, drawing in fragrance-free air, for a much lower (and thus reasonable) cost.  And the “reasonableness” a fragrance-free policy will depend on several factors, based on who it impacts.

A “fragrance-free” policy can be imposed upon employees after due consideration of overall working conditions, any union agreement, and related policies.  However, a “fragrance free” policy for the visiting public poses broader difficulties.  As just one concern: while most libraries will find it reasonable to address extreme hygiene issues that impact everyone (like visitors who may bring the pungent odor of fecal matter[2]) through a “Patron Code of Conduct” to, a facility-wide “fragrance ban” could (ironically) impose limitations on library access.

This is where design—and well-crafted library-specific policy—can help out.  Depending on the library, a climate-controlled area with separate HVAC or windows can be set aside as a “fragrance-free” area.  A sign could say “This area is designated as fragrance-free.  Please observe this restriction in consideration of fragrance-sensitive patrons.”  For libraries considering updating their facilities, although not currently required by current (2010) “Standards for Accessible Design[3],” a room with adequate heating/ventilation/ac (“HVAC”) to achieve this separation is worth considering.

As someone who is addicted to Lush’s “Dirty” body spray (spearmint and tarragon, just the thing to spritz after a stressful day of lawyering[4]), I realize it is easy to write about creating a scent-free space, and hard to navigate the human aspects of policing one.  Further, as discussed, there is no one-size-fits-all approach. The bottom line for compliance is: within the limits of what is financially, operationally, and physically feasible at your library, consideration of a fragrance-free environment should be made.  When the access under consideration is for a bathroom, access to the accommodating facility should be clearly designated, and a bar to fragrances should clearly apply to the space.

A great resource for starting this fragrance-free journey, including sample language for when considering a policy, is https://askjan.org/disabilities/Fragrance-Sensitivity.cfm.  As always, before using cookie-cutter language, it is best for a library to check its charter, bylaws, other policies, lease, and any union agreement before crafting their own, unique policy to meet the needs of their community.

I hope this answer passes your “sniff” test.

 

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

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

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

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

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

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

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

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

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

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

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

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

Here is the complete text of 110(4):

[The following is not an infringement of copyright]

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

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

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

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

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

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

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

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

Let the music play.

But what’s the venue say?

If there’s a license you

Can play other people’s tunes.

 

Let the covers play

If your library doesn’t pay,

and don’t transmit your groove

Then the tunes are free to use.[5]

 

In the state of New York, library records linked to the names of users can only be disclosed:

1) upon request or consent of the user;

2) pursuant to subpoena or court order; or

3) where otherwise required by statute.

Therefore, the strong default answer to the member’s questions is “NO.”

This strong default position is based on New York Civil Procedure Rules (“CPLR”) 4509, which states:

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]

But when it comes to the records of minors at a school serving minors, after this omni-present strong default, there are some additional factors to consider.

FACTOR #1

Does the school condition library privileges on express parent/guardian access to library records?

Under CPLR 4509’s first prong (“consent of the user”), some libraries may condition library use by a minor on permission to share library records with parents/guardians. 

This condition is not invisible or automatic; it would need to be in the cardholder agreement signed by the student, or in a written school policy passed by the school board.  It must be clear, and in writing.

There is much vigorous debate about what level of parent/guardian access it is appropriate to condition library privileges on.[1]  But since such conditioning is allowed by the law, setting the appropriate balance between privacy and access is the job of the library and its leadership.

The bottom line on this factor? If a school library has an express, written policy allowing it,[2] and if that policy also complies with the school’s obligation’s under FERPA (see below), a list of titles checked out may be disclosed  to parents in conformity with CPLR 4509.

FACTOR #2 

Does the school regard library records as “education records” under FERPA?

The member’s questions warrant three considerations vis-à-vis FERPA (“Family Education Rights Privacy Act”), a country-wide law which applies to any educational institution receiving federal aid.

First FERPA consideration: Are the school’s library records accessible as “education records” under FERPA?

Because it is famous for protecting privacy, people generally think of FERPA as a bar—not a means—to information.  But FERPA expressly allows parents and guardians of students under 18 (unless the minors are attending a higher ed institution) to “inspect” “education records,” and, under the right circumstances, allows disclosure of education records to school administrators. 

A list of titles borrowed from a library, if maintained in a way that meets FERPA’s definition of “education records” could be subject to such inspection and disclosure. 

So let’s look at that definition:

[Information]

(1) Directly related to a student; and

(2) Maintained by an educational agency or institution or by a party acting for the agency or institution.[3]

That’s a broad definition!  But several categories of information are exempted from it, including:

 (i)  records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute;[4]

Under this exception, school library records, if kept in a certain way (with only the librarian, or “substitute,” having access to the records, and the information not linked to or accessible to others, including the student), are arguably exempt from FERPA. 

What’s the take-away, here?  It is possible—but not a uniform rule—that school library records are “education records” under FERPA.  Determining if they are should be part of a school’s annual FERPA notice and policy work, and should be a consideration when a school library considers automation options. 

Second FERPA Consideration: If a school determines their library records DO qualify as “education records,” does a school administrator, safety officer, or SRO[5] have a right to access them under FERPA?

Even if the library records at a specific school qualify as “education records,” when it comes to school administrators, there are only two instances where disclosure is allowed.

The first instance is created by FERPA regulation §99.3.  It allows “… disclosure … to other school officials…[if the disclosure is in the student’s] legitimate educational interests.” 

With regard to a request for a list of borrowed library books, this means there must be a direct, pedagogical reason to disclose that particular list to that particular administrator, safety officer, or (if their contract has the right provisions) external personnel.  To determine if those individuals’ access is in the students “legitimate educational interests,” consideration of the unique circumstances is required, but it comes down to: how does this serve the student?  

The second instance is created by FERPA regulation §99.36.  This regulation allows an educational agency or institution to “disclose personally identifiable information from an education record to appropriate parties… in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals.”

Under extraordinary circumstances, this exception could be cited to justify disclosure of education records to an administrator, safety officer or SRO addressing a concern about immediate health or safety. 

But the circumstances warranting the disclosure would need to be—as I say—extraordinary.  Congress and the U.S. Department of Education want this to be a very narrow exception tied to imminent threats:

The Department has consistently interpreted this provision narrowly by limiting its application to a specific situation that presents imminent danger to students or other members of the community, or that requires an immediate need for information in order to avert or diffuse serious threats to the safety or health of a student or other individuals.

Such a “health/safety” analysis—especially if used to justify disclosure of library records—will be highly fact-specific.  Whenever possible, it should be done in consultation with the school’s attorney, with careful consideration of the precise circumstances and any relevant policies (by the way, this is the kind of “now or never/critical” question school attorneys cancel meetings to research and answer promptly).

Third FERPA consideration: if a school determines their library records are “education records,” CPRL 4509 may still bar parent access under FERPA.

And finally, there is also a possibility that even if a school’s library records are “education records,” under FERPA, library records in New York schools are barred from being shared (without consent) with parents/guardians by CPLR 4509. 

I base this on §99.4 of the FERPA regulations, which states:

An educational agency or institution shall give full rights under the Act to either parent, unless the agency or institution has been provided with evidence that there is a court order, State statute, or legally binding document relating to such matters as divorce, separation, or custody that specifically revokes these rights.[6]

In New York, we have just such a “State statute:” CPLR 4509.  When it was adopted, its role was described as follows:

The New York State Legislature has a strong interest in protecting the right to read and think of the people of this State. The library, as the unique sanctuary of the widest possible spectrum of ideas, must protect the confidentiality of its records in order to insure its readers' right to read anything they wish, free from the fear that someone might see what they read and use this as a way to intimidate them. Records must be protected from the self-appointed guardians of public and private morality and from officials who might overreach their constitutional prerogatives. Without such protection, there would be a chilling effect on our library users as inquiring minds turn away from exploring varied avenues of thought because they fear the potentiality of others knowing their reading history.[7]

Those are some stirring words about privacy.  They show what the Assembly’s intent was when CPLR 4509 was passed. 

That said, this potential conflict between CPLR 4509 and FERPA has not been tested in a court of law.[8]  This position is not something a school should  adopt or rely on without consultation with their own attorney, as part of their annual FERPA notice and policy work.

But it is definitely something to consider.

Final FERPA Consideration: how to resolve a FERPA question when state and federal law conflict.

The good news in all this 4509/FERPA complexity is that FERPA itself anticipates this type of conflict and resulting concerns.  FERPA Regulation §99.61 states:

If an educational agency or institution determines that it cannot comply with the Act or this part due to a conflict with State or local law, it shall notify the Office within 45 days, giving the text and citation of the conflicting law.

In other words, the U.S. Department of Education knows schools will be wrestling with these issues!  A school that makes a good-faith determination of non-disclosure under FERPA (always with the advice of their attorney) can follow this policy for reporting a conflict.  The USDOE will write you back, even if your concern is policy-driven or hypothetical.

Conclusion

Since school libraries—which are legally distinct from libraries at colleges and universities—are specifically named in CPLR 4509, there is no doubt that 4509’s strong bar on disclosure applies to schools where minors are in attendance, while the law is silent about access of guardians/parents to their children’s library records.

The best way for a school library and its leadership to handle these questions is in advance, by having a policy that respects student/family rights, and the operations of the library. 

A good school library “Confidentiality of Library Records” policy will protect student privacy, educate students about their right to privacy, coordinate with the school’s position under FERPA, consider student and employee well-being, and position the library to operate properly. 

Creating such a policy is an exercise in staff teamwork and aboard responsibility.  Considering the complexity of the different factors at pay, I urge school librarians and their leaders to review these considerations with their own attorneys, and to work with their boards to adopt policies that reflect the legal position and the educational priorities of their institutions.

Thank you for these important questions.

 

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

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

Follow the three-step process below.

STEP ONE

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

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

Research Volunteer

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

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

The essential elements of this first step are:

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

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

STEP TWO

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

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

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

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

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

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

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

STEP THREE

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

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

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

Unpaid volunteers at not-for-profits may not:

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

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

Final thoughts

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

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

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

Thanks for a great question!

 

 

This member is thinking ahead!

Starting June 29, 2019, any space within a 100-foot perimeter around a public or association library, including adjacent businesses, is subject to a state-wide smoking ban.  The sole exception is residential properties (inside and out).

Any person or business violating this new ban may be subject to a $2,000 fine.[1]

This new law is part of Section 1339-o of New York’s Public Heath Law.  It reads:

Smoking shall not be permitted and no person shall smoke within one hundred feet of the entrances, exits or outdoor areas of any public or association library as defined in subdivision two of section two hundred fifty-three of the education law; provided, however, that the provisions of this subdivision shall not apply to smoking in a residence, or within the real property boundary lines of such residential real property.

This is a powerful new law, and it has many libraries thinking about implementation.

As the member’s question illustrates, complying with, taking advantage of, and rolling out this new law may take some effort—as well as some tact and diplomacy. 

Here are some tips for a graceful transition (and how to not ignite the fuse of nearby, non-residential smokers and their landlords):

First, some new signage can go up, alerting people to the impact of the new law. Per Public Health Law Section 1399-p (“Posting of Signs”), smoking signage should meet the following requirements:

“Smoking” or “No Smoking” signs, or “Vaping” or “No Vaping” signs, or the international “No Smoking” symbol, which consists of a pictorial representation of a burning cigarette enclosed in a circle with a bar across it, shall be prominently posted and properly maintained where smoking and vaping are regulated by this article, by the owner, operator, manager or other person having control of such area.

Signage to assist with compliance should add “…within 100 feet of this boundary.  NY Public Health Law 1399-o.”

Second, it might be helpful to amend or create library’s policy on smoking so it states:

Per Section 1399-o of New York’s Public Health Law, it is forbidden to smoke within 100 feet of library property (except for residential properties).  To promote compliance, the library will maintain signage consistent with Section 1399-p of that law, and will work with impacted neighbors to enforce and encourage compliance with this law.

Third, a simple plan of outreach to “impacted neighbors,” can help your library collaborate on compliance (instead of waiting for a clash of employees or customers).  This is not a legal requirement, but it is the type of law-based, thoughtful, pro-active rollout can forge and maintain healthy neighborhood relations. 

Part of such a “Smoking Ban Rollout Plan” could include a letter such as:

Dear [Non-residential Neighbor within 100 fee of library property]:

As you may know, effective June 19, 2019, New York’s Public Health Law makes it illegal to smoke within 100 feet of a public or association library like the [NAME] Library.  The sole exception to this law is a residential property.

As you can see on the attached map, your property is within 100 feet of the library’s.  Please let us know of any concerns you have about alerting your [employees, customer’s, etc] to the requirements of this new law.  Please also let us know who we may contact it the event of a concern.

Our board and library staff are working to alert everyone and make sure our transition to this new law goes smoothly.  [We are installing new signage, as well.]  If you need to discuss any aspect of this, please contact [name] and [number or email].

Thank you for your consideration!

Sincerely,

Your friends at the [NAME] Library

Any contact with neighbors should bear in mind that under the law, certain facilities (ironically, hospitals and residential health care facilities) are allowed to “designate” a smoking area on otherwise-non-smoking premises (this might be the scenario in the circumstances described by the member).  Further, if a business or person can allege an “undue hardship,” they can request a waiver of a smoking ban under Section 1399-u.[2]  Since you don’t want a confrontation to spur a request for a waiver, “friendly outreach” is a good tone to strive for.

And finally, it is good for your library to consider that enforcing a smoking ban can cause a lot of stress, and use up a lot of director and staff energy.  Think about it: Librarians already have to be on the lookout for illegal porn use, opioid overdoses, and destruction of library property.  Now they have to patrol for neighborhood smoking, too?  That’s a lot of social work for someone who just wants to help the world find information. 

For those moments, in addition to your library policy, a short statement endorsed by the board, for staff can hand out, might be helpful.  Something like:

Consistent with New York’s Public Health Law (Section 1399-0), there is no smoking allowed within 100 feet of the [NAME] library.  Thank you for supporting New York State’s public health initiative, and helping our library honor this law. –The Board of the [NAME] Library

When facing a needy[3] smoker, backup from both the state, the law, AND your board can be a great morale booster.

Libraries should also note: while Section 1339-o of the Public Health Law bars smoking AND vaping in many areas, this new library-specific section (section 6) bars only SMOKING[4] (and yes, under the law, “smoking” and “vaping” are distinguished.[5]  “Smoking” means “the burning of a lighted cigar, cigarette, pipe or any other matter or substance which contains tobacco.”  “Vaping” means “the use of an electronic cigarette.”).  So in addition to the compliance steps outlined above, get some binoculars, so you can be ready for some precise enforcement!

So that’s it.  Libraries needing to check their property line maps to establish their 100-foot perimeter can use their property survey and the county’s tax maps (this is also how you can check for a property’s actual owner, in addition to simply observing and notifying their tenants).

I wish every public and association library in New York smoke-(but not vapor)-free property lines!

 

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[1] From the relevant county health department, or, in some places, another designated enforcement official.

[2] Yes, this law uses almost the entire alphabet.

[3] I was a smoker in the 90’s.  I quit around Y2K, but I still remember the feeling of being an addict needing to smoke…it can make you act grumpy to even a very nice librarian.

[4] At some point I will check JSTOR to see if there is hard info as to why vaping within 100 feet of library is somehow better for the public health than smoking. 

[5] The definitions are in Section 1399-n.

 

Not only is it legal, but it is required by law.

When the new provisions of New York’s Public Health § 1399-o first went into effect June 19, 2019, “Ask the Lawyer” got a question about enforcement, so we wrote a guide for implementation. 

While hopefully the “guide” has been useful (it warmed my heart to see one library[1] getting media coverage for putting up signs with wording I suggested), it might be easy to miss the actual heft of this law as we think about the details of implementation.

So here, without too much distracting commentary, is the text of the new law:

Smoking shall not be permitted and no person shall smoke within one hundred feet of the entrances, exits or outdoor areas of any public or association library as defined in subdivision two of section two hundred fifty-three of the education law; provided, however, that the provisions of this subdivision shall not apply to smoking in a residence, or within the real property boundary lines of such residential real property. [emphasis added]

Seems pretty straightforward to me…“outdoor areas” as in: the outside (with an exception for nearby residential properties).

Despite this straightforward language, since I wrote the “guide,” we have gotten some questions from members stating that their local health department claims they will only enforce compliance within 100 feet of exits and entrances.

This feedback really concerned me.  First, it is contrary to the plain language of the law.  Second (but really first), libraries are finding new ways to reach out to the public every day; this includes outdoor programming.[2]  “Outdoor areas” of the library serve the public, too.

So, inspired by this latest question, and the feedback we’ve received, I called my local Erie County Department of Health, and reached  Rob Tyler, who works on smoking enforcement. 

Rob and I had a nice chat about how sometimes the language in these laws can be open to interpretation, but this seemed pretty clear.  But then he suggested: “You should probably call the State.  They are one ones who can give guidance on the law.”

So, after thanking Rob for his time, I called the General Counsel’s Office at the New York State Department of Health, and was directed to attorney Megan Mutolo.[3]

Megan also agreed with me on the plain language of “outdoor areas.”  That said, she urged me to urge libraries to build a relationship with their county health departments so libraries are ready to enforce the new law together. 

This is good advice from Megan.  Since New York tries to encourage “municipal home rule,”[4] as much as possible is left to local officials from within a particular community.  This means that local health departments can have their own take on the new law…one that you can discuss with them while forming a meaningful alliance.[5]

So, to the “helpful tips” in the “guide,” inspired by this question, I add: Consider making a connection with your local health department, and reviewing the precise language of the new law together.  Many departments, if they have not given the new law a careful review, might overlook the requirement about “outdoor areas.”  But that language is there, and when read in context, is very clear—as is the library’s obligation to enforce this law.

Thanks for your question!

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[1] Here’s to you, Saratoga Public Library!

[2] As but one example, the Buffalo and Erie County Public Library’s Central Library has a great new “Reading Garden” in downtown Buffalo.

[3] NOTE: I called both these people on a Friday afternoon.  Not only did I get quick answers, but they were friendly, too!  I guess you don’t go into health law unless you really care about people.

[4] My words, not Megan’s.

[5] I know they have enough on their plate already, but this might be something a library system can help with.

This question has two parts: 1) liability for copyright infringement based on a live reading (without staging) of a dramatic work; and 2) liability for events at library facilities.

Let’s tackle part 1 first. 

Section 110 of the Copyright Act sets out a number of exceptions for educational and charitable use of copyrighted works.[1]  Unfortunately, “dramatic works” (plays) are largely excluded from those exceptions.  So while Section 110 is generous (for instance, there is a total exemption from liability for performance of non-dramatical musical works at horticultural fairs!)[2], “performance” of dramatic works (even without staging) is not as excused as other types of use.  

The other exception that could apply to the member’s question is of course “fair use.”  I won’t take up too much of this “Ask the Lawyer” to discuss that option, since the event described here does not sound like it would meet the criteria. [3]

For this reason, any library or venue asked or planning to host a reading of a dramatic work—even without staging it, even without charging admission—should be very cautious.  Unless there is a confirmed exemption under 110 (which would be for classroom use, or for a performance for people with visual impairments), or a documented “fair use” under 107,  proper licensing should be obtained.

And now for part 2. 

Most libraries have some form of policy, and maybe a “facility use contract,” allowing groups or individuals to use their space.  Some charge a small rental fee, others do not.  Some have express restrictions on use by businesses or political groups,[4] others do not.

What’s important to the member’s question is that any use of library facilities should be governed by clear, uniformly applied, mutually-understood terms that:

• ensure ease of distinguishing official library events from those simply using the library;
• require any outside group to expressly assent to following library rules and procedures;
• protect the library from any third-party claims based on the group’s use of the premises.

When it comes to copyright, this last part is essential, since the copyright law allows for “vicarious” liability that can include “innocent” (meaning, they didn’t know about it, or didn’t instigate it) infringers. 

This is what the last Congressional committee amending the Copyright Law has to say about “vicarious liability” for performances:

Vicarious Liability for Infringing Performances.

The committee has considered and rejected an amendment to this section intended to exempt the proprietors of an establishment, such as a ballroom or night club, from liability for copyright infringement committed by an independent contractor, such as an orchestra leader. A well-established principle of copyright law is that a person who violates any of the exclusive rights of the copyright owner is an infringer, including persons who can be considered related or vicarious infringers. To be held a related or vicarious infringer in the case of performing rights, a defendant must either actively operate or supervise the operation of the place wherein the performances occur, or control the content of the infringing program, and expect commercial gain from the operation and either direct or indirect benefit from the infringing performance. The committee has decided that no justification exists for changing existing law, and causing a significant erosion of the public performance right.

As a not-for-profit institution, a library may have some more defenses than the average night club owner, but there is still a threat of liability. 

So how do venues reduce the risks posed by “vicarious” liability? Often, they ask the main performer, or the entity renting the facility, to “indemnify” the venue for any liability related to the performance.  To ensure they are actually protected, they also demand a certain amount and type of insurance, and require that the venue be a “named insured.” [5]  Later, if they are sued for an infringing performance, the venue will invoke the indemnity, and be defended by and have their damages paid by the renter or performer. 

So, to recap, the following factors are potentially relevant to both parts of the member’s question:

• This particular use of a copyrighted work does not seem to fall under the exceptions of Copyright Law 110;
• A reading of a dramatic work could be a “fair use” under Copyright Law 107, but that conclusion should be carefully documented, and again, does not seem to fit the described situation;
• A library should have a policy and contract that enables the clear distinction between library and non-library events;
• A library should have a “facility use” contract that protects it from any risks of allowing others to use its facility, including performance-related liabilities;
• A library should have insurance coverage that takes into consideration use of its facility by others, including use for performances;
• For certain high-risk uses (if allowed) a library can require an indemnification and insurance;
• For certain high-risk uses, a library can simply decide the event is too risky.

This assessment of risks and ways to mitigate them is called “risk management,” and the member’s question is a great example of how to start the process.  So, what was that question again?

…regardless of whether an audience is brought out for the performance or not, regardless of who is 'sponsoring' it, this would be in violation of the creator's (who is still alive) copyright claim to the work. Further, that the library would most likely be the liable party.

Am I right?

Except for would changing “the liable party” to “a liable party”: yes, the member is correct…there is a risk.  How can this assessed risk be managed? One of four ways:

• Have the group obtain written permission from the rights holder (for a reading at that precise location);
• Locate a 110 or 107 exception;
• Require an indemnification and proof of insurance from the group; or
• Make a risk-management decision to not host the event.

Thank you for your careful question!

Exeunt lawyer, stage left.

This question has two parts, so I will re-state them for clarity:

Is it legal to forward that charge on to the patron as they are the party who cancelled the service?

Answer: no.

If this behavior becomes habitual (a request is made, the patron cancels past the 48 hour minimum time frame, we get invoiced), does the library have any recourse per ADA compliance law?

Answer: yes.

For more on both of these, see below!

This submission to “Ask the Lawyer” is a good companion to a recent query about arranging ASL interpreters, posted under the title “ADA Compliance When Screening Movies” (we’ll call it “Screening Movies”), on January 7, 2019. 

“Screening Movies” sets out some of the fundamentals of ADA compliance in the ASL interpreter realm, so as a foundation for the answer to this question, please take a look at it for some essential background.

[We’ll pause while you read “Screening Movies” and absorb the basics.]

Okay, have you got the fundamentals of ASL-related ADA compliance?  Great!  Now we’ll move to the advanced work required by these questions.

The answer to the member’s first question is “No,” because, per federal regulations[1]:

 (c) Charges. A public accommodation may not impose a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids….

While any regulation is of course open to interpretation, the United States Department of Justice—the body charged with enforcement of the ADA—offers this commentary on surcharges related to accommodations:

One medical association sought approval to impose a charge against an individual with a disability…where that person had stated he or she needed an interpreter for a scheduled appointment, the medical provider had arranged for an interpreter to appear, and then the individual requiring the interpreter did not show up for the scheduled appointment. Section 36.301(c) of the 1991 title III regulation prohibits the imposition of surcharges to cover the costs of necessary auxiliary aids and services. As such… providers cannot pass along to their patients with disabilities the cost of obtaining an interpreter, even in situations where the individual cancels his or her appointment at the last minute or is a ‘‘no-show'' for the scheduled appointment. The… provider, however, may charge for the missed appointment if all other[s] … are subject to such a charge in the same circumstances.

In other words, cancellation fees or other obligations imposed upon the general public can be equally applied to those who require ADA accommodations, but any charge specifically related to an ADA accommodation cannot. 

There are, however, several ways to address the need of Deaf and Hard-of-Hearing users to change their arrangements.

1.  Renegotiate your interpreter contract to shift away from cancellation fees

This of course requires cooperation by your ASL agency, but it is feasible. 

One approach is to use a contract that guarantees a base or “stand-by” rate that is assured to your provider (regardless of utilization). For example, for $####/year, your organization gets ### hours of services, in up to ### separate instances; this amount is paid not matter what. 

This gives both your library, and the provider, some fiscal stability as you serve the needs of your community.  It is an approach that might not work for libraries with small budgets, but collaboration with a system, council, or network can sometimes use this approach.

2.  Renegotiate your contract to tighten the cancellation window and reduce the fee

24 hours’ notice and a cancellation fee (not paying for the whole service value) is much more reasonable!

Again, this requires cooperation by our agency, and in you location, it might be a seller’s market.[2]  But it doesn’t hurt to negotiate![3]

3.   Know your budget

As described in “Screening Movies,” the obligations of libraries will vary wildly from institution to institution.  What might be “reasonable” to a large urban library might be an “undue burden” [4] for a small village library with a much smaller budget.  But no matter the size or budget, as “Screening Movies” states, every library should have an accommodations plan—and that plan should have a line in the library’s budget.

When a library has a budget for routine ADA accommodations (as opposed to one-time capital improvements or ad hoc needs of employees), it can help provide users with meaningful information about the libraries ability to provide those services.  It can also position your library to show if the cost of an accommodation truly would be an “undue burden,” (and thus not an obligation) as defined by the ADA.

For members of the Deaf and Hard-of-Hearing communities, access to information is critical, and a public library’s commitment to assuring it is vital. 

The member’s foresight and attention to stewarding this resource and making it as accessible as possible is exactly what is required.  And as can be seen, just as critical is finance committee and budget input on how to make the most of assets and budgets that help assure access and legal compliance.

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[1] 28 C.F.R. § 36.301 “Eligibility criteria.”

[2] A good resource when considering an interpreter contract is here: https://rid.org/about-rid/about-interpreting/hiring-an-interpreter/.

[3] I don’t mean to imply that this member didn’t negotiate.  In my experience, librarians are often tough and forward-thinking hagglers.

[4] Undue burden means significant difficulty or expense. In determining whether an action would result in an undue burden, factors to be considered include –

• (1) The nature and cost of the action needed under this part;
• (2) The overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site;
• (3) The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;
• (4) If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and
• (5) If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.

 

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

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

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

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

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

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

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

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

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

Thank you for this thoughtful question.

TEMPLATE EIS AVAILABILITY REQUEST FORM

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

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

Further Terms Agreed to By Lead Agency

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

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

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

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

LEAD AGENCY:___________________________________

CONTACT AT LEAD AGENCY: ___________________________________

TITLE OF CONTACT: ___________________________________

PHONE NUMBER: ___________________________________

EMAIL: ___________________________________

PROJECT NAME: ___________________________________

PROJECT ADDRESS(ES): ___________________________________

PUBLIC COMMENT PERIOD START DATE: ___________________________________

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

 

SIGNED ON THIS __________ DAY OF ____________, 20_____.

SIGNATURE:__________________________

PRINT NAME:__________________________

TITLE:____________________________________

 

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bankruptcy Discharge Policy

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

Procedure

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

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

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

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

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

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

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

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

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

Thank you for this careful question.

 

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

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

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