Board of Trustees

For some readers, this might require a bit of background. So, before we dive in, there are two things to know:

First thing: All public libraries (even association libraries) are subject to the “Open Meetings Law” (or the “OML”), so this question applies to all public libraries.

Second thing: “Robert’s Rules” is a common framework for running meetings, but it is not required by law[1] (although it is sometimes in a public library’s bylaws). If a public library board wants to invent a procedure using Discord and Lego to share their board packet and signify how they have voted,[2] and it results in shareable information and documented results, they can do so.

1. Are consent agendas allowed for agencies subject to OML?

A “consent agenda” (or, as defined in Robert’s Rules,[3] a “consent calendar”) is a list of “routine or noncontroversial matters” to be considered for approval all at once without discussion. It is often used by not-for-profit companies, such as libraries, to take action on things like committee reports, etc. with one resolution (“be it so moved to accept and file the reports listed on the consent agenda”).

The potential problem with this is that the OML now[4] requires a public agency to “make available” all documentation to be considered at a public meeting[5] at least twenty-four hours before the meeting, including all the items that might be lumped together in a consent agenda.

Further, there is still some “legacy guidance” out there[6] that suggests the materials related to a consent agenda don’t have to be disclosed (that is wrong). If the items are being voted on as part of the meeting, they need to be available as now required by law, but they can still be acted upon via a “consent agenda.”

2. Should public or association libraries refrain from having their Boards of Trustees accept the financials (motion, second, vote) presented by the library’s treasurer so as not to give the appearance of agreement and assurance that they are accurate and without error?

Hmm... what an interesting question.

It is the duty of a public library board to not only routinely monitor the financial status of the library but to monitor the fiscal activity of the library to ensure it complies with the law and relevant financial policies.

So, while the board should be reviewing and then (if satisfied) accepting the financial report, it is not doing so simply to check it for accuracy, but to:

• Ensure account balances are as expected (based on the budget)
• Assess what to do if balances are not as expected (perhaps due to a budgeting error)
• Make sure deposits and payables are as expected
• Ensure that investments are being managed as required
• Monitor petty cash use as required by law[7]
• Ensure any use of credit is within accepted ranges of authority.

How does a board do this? By phrasing the resolution to match their obligation. So, a resolution should never be simply to “accept the Treasurer’s Report”, but rather, something like:

WHEREAS the board has had an opportunity to review and ask any questions about the Treasurer’s Report;

BE IT RESOLVED that the board notes the Treasurer’s Report was submitted with no further action noted.[8]

On a month where something is out of whack, the resolution could be:

WHEREAS the board as had an opportunity to review and ask any questions about the Treasurer’s Report; and

WHEREAS it was noted that the board had anticipated additional revenue in the form of a grant awarded last March;

BE IT RESOLVED that the board notes that the report was submitted and requests the Finance Committee and Director to develop an alternate plan in the event that the anticipated funds are not received by month-end.

A resolution to acknowledge receiving a report is not the same as acknowledging the board has double-checked the math on every item. However, a board should not review any financial report in isolation, and if things don’t add up, address any concerns via a resolution (as shown above).

3. If there is a board committee that, per the bylaws, is not given the power to act independently o[f] the board, is it permissible for a member of such a committee to make a motion to be followed by discussion and vote without a second?

Ugh. It depends.

If a board is using the current Robert’s Rules (12th Edition) without modification for a body of fewer than 12 members, the answer is no.[9]

If the board has adopted any other standing procedure that bars such action: also no.

On the other hand, if the board is using Robert’s Rules 12th Edition, but with the modification for a body of under 12 people (which requires no seconding): sure!

Whatever rule is selected, it should be applied consistently.

4. From the perspective of OML or others that you know are relevant for the library is it legally acceptable for a board chair to make a motion?

Yes, the board chair can make a motion.

But, for boards that are super into Robert’s Rules—Section 3 sets out how a “member” can “claim the floor,” which is the first part of the intensely detailed method of making a resolution per Robert’s Rules.[10]

The floor is “claimed” when the member is acknowledged as having it by the chair. The chair then guides the process by ensuring there is a second (when required), stating the question, overseeing debate, putting the question, and announcing the result.

So, you probably see the issue: for the chair to “give the floor” to themself and then do all the refereeing for their own motion is… frowned upon.

But again, it is allowed unless the body has adopted rules that disallow it.

I see this question as coming down to common sense and courtesy.

If a motion is of sufficient interest to the board chair that they would like to bring it, it may be better for them to ask the vice chair or another officer to temporarily take over chairing the meeting.

However, if the board chair is putting the motion simply because they are the most comfortable at putting motions,[11] and the process is still being conducted with documented clarity,[12] then it is fine.

The goal—above all other things—is to have a procedure that enables the board to efficiently, clearly, and fairly get business done.

For some people, Robert’s Rules are wonderful; for others, it is just a procedural quagmire. A board should periodically evaluate what process it is using, to make sure it is helping the board be as strong as it can for the library and that the process is being used to unite leadership, not alienate those who don’t know parliamentary procedure.

More important than Robert’s Rules (or any other agreed-upon process), a library board in New York should be trained on both the Open Meetings Law and their duty to monitor fiscal matters, so the materials and mode of conducting meetings complies with the law and protects the library.

Thanks for a great series of questions! See the following page for a “Friendly Cheat Sheet” for Robert’s Rules of Order.

Robert’s Rules FRIENDLY CHEAT SHEET 

When the board needs to take action, it does so by a resolution. Resolutions can be used to request committees to investigate certain matters, to authorize the revision of policy, to exercise any of the board powers listed in the Charter or the Education Law or the Not-for-Profit Corporation Law, and to express the general positions of the board.

Creating and Moving a Resolution

Any trustee with a conflict of interest or potential conflict on a particular item should declare it and recuse themselves from the vote the moment the topic is raised. Any declared conflicts of interest should be noted in the minutes by the Secretary or note-taker.

It is important that the precise wording of the resolution be confirmed prior to the resolution being “moved” forward, seconded (if you’re requiring seconding) and voted upon. To do this, the Secretary or note taker should confirm what the text of the resolution is, and it should be read aloud.

The person chairing the meeting can then say, “does someone so move?” If a member says, “so moved,” the Secretary or note taker should note who moves the resolution.

[Optional] The person chairing the meeting can then say, “does someone second the motion?” If a trustee says “yes,” the secretary or note-taker should note who seconds the resolution.

The person chairing the meeting can say, “any discussion?” Discussion can get a little unstructured, but it is wise for the meeting chair to consider monitoring the time and taking care to ensure each person who wishes to speak gets a chance—in recognized order. Discussion can result in the motion being amended (in which case there needs to be a resolution to amend the pending motion), withdrawn, or it can result in a robust discussion that leads to the final vote.

When discussion is ended (if discussion is particularly contentious and long-ranging, this is where you delve into the big book of Robert’s Rules on making amendments, withdrawing questions, and “calling” questions. However, whenever possible, it is nice to work for harmony as to when discussion is over, rather than use a procedure.) When over, the chair can confirm, “discussion is ended, and the board will now vote.”

Any trustee recusing due to a conflict of interest should make sure their abstention from voting is noted in the minutes.

The votes are noted by the note-taker, are tallied, and if the appropriate number required for it to pass is logged, it should be noted that the motion carried.

Let's begin by breaking this question down a bit and giving one-word answers.

Question 1: Is it legally possible for a municipal library to manage its own construction projects?

Answer: YES.

Question 2: Can a library board take on such a role?

YES.

Question 3: What is the legal framework for such an arrangement?

Well…

And with that, we're out of one-word answers. So, grab a relaxing beverage of choice, get comfy, and join me in fiddling with the Rubik’s Cube of New York State library law: library real estate.

Why is this issue a "Rubik's Cube"?

Well, for starters, there are SIX questions every municipal library board must always know the answer to:

1. Who owns the library building and grounds?
2. Who insures the library building and grounds?
3. Who is responsible for day-to-day maintenance of the library building and grounds?
4. Who pays for day-to-day maintenance of the library building and grounds?
5. Who pays for construction, renovation, and repair of the library building and grounds?
6. Who can sign contracts as the owner of the library building and grounds, and/or who [if anyone] can sign contracts as "tenant" of library building and grounds?

One would think there are only two possible answers to each of these questions ("the library" or "the municipality") and that those answers would have some sort of internal consistency—but that is not the case. Often, the answers are hybridized (with a third party playing a role), and what is written on paper might not be true in practice. Further, a clear answer to one question doesn't mean there is a clear answer to another. This means that the six questions of the "Cube" form scores of possible combinations.

Here are some interesting combos inspired by situations I have run into:

• The municipality owns the building, but the deed restricts use to only the library, which arranges for and pays for everything but the heat and roof repairs.
• The library owns the building and grounds, and the municipality has nothing to do with it. NOTHING.
• Everyone says the library "owns" the building, but they don't own the land; when this is found to not be the case, everyone wants to keep saying it anyway, since that helps keep things separate and emphasizes the library board's authority over the operations of the library.
• The municipality owns the building and grounds AND has custody of the library's money AND the library board can never get a clear answer on what part of the library budget is being used to maintain and insure the building.
• The municipality owns the building and grounds, but the library handles everything (with or without a lease).

These different permutations are neither "wrong" nor "right", but they do set the stage for some interesting dynamics. Here are some inspired by situations I have run into:

• The municipality owns the building, but the deed restricts use to only the library, which becomes very useful knowledge when a new mayor tries to threaten the library with eviction.
• The library owns the building and grounds, and the municipality has nothing to do with it. NOTHING. So, everyone is happy because there is no cause for friction about real estate.
• Everyone says the library "owns" the building but they don't own the land. This works well until a construction grant requires proof of ownership and the truth has to be articulated in a letter to the state.
• The municipality owns the building and grounds AND has custody of the library's money, AND the library board can never get a clear answer on what part of the library budget is being used to maintain and insure the building.  No one knows if/how it is insured. This can be a nightmare.
• The municipality owns the building and grounds, but the library handles everything (with or without a lease). When there is a lease, it should establish this level of authority: who can arrange a contractor, whose insurance covers what, etc. When there isn't a lease, the lack of clear authority can become a problem.

Because of the variety possible, no two libraries have precisely the same combination of answers to these questions. But each of these questions relates to the member's request for the "legal framework" that enables a municipal library to oversee its own construction project.

Let's examine the six questions with respect to this "framework."

1. Who owns the library building and grounds?

When the library owns the building and grounds, it is indisputably able to enter contracts for construction (site testing, general contractors, contractors).

When the library doesn't own the building and grounds, it only truly has the authority to enter contracts for construction if that authority is confirmed in writing.

This can get confusing, as anyone can hire services (such as those of an architect) for a building but might not have the authority to do so on behalf of the library.

2. Who insures the library building and grounds?

This factor is important because insurance and risk management are such a huge part of designing and building a library (whether renovating, repairing, or newly constructing). If the library isn't in a position to call the shots on insurance, it is not truly in control of the project.[1]

3. Who is responsible for ensuring day-to-day maintenance of the library building and grounds?

Very often, libraries who are not positioned to sign a contract for major construction (because they don't own the building or have a lease or municipal policy that allows them to) find themselves arranging small services such as a plumber visit or a quick repair by an electrician. From what I have seen, this seeming authority is due to one of two things; either 1) the municipality has a policy allowing "department heads" or others to sign on to smaller contracts, or 2) it is due to these smaller contracts flying under the radar of the risk management and procurement authorities.

4. Who pays for day-to-day maintenance of the library building and grounds?

Even when a library owns the building the issue of "who pays" can result in a municipality denying the library’s ability to sign a routine maintenance contract.

For example, if a municipality funds the library out of a general operations budget (no separate tax levy) and is the custodian of the funds, a municipality can functionally[2] deny the ability of the board even so much to bring in a needed cleaner, if there is not exceptional clarity.

On a more routine level, this aspect can get weird[3] when municipalities deduct or charge costs for services provided by third party contractors or facilities departments, without even alerting the library.

5. Who pays for construction, renovation and major repair of the library building and grounds?

The examples in #3, above, become more extreme once construction, renovation, and major repair come into play.

Some municipalities will accept construction funds and then try to bundle the projects, using library money to underwrite non-library projects.[4]

Some will reject architectural plans generated by a firm hired by the library, claiming the municipality must be on the contract.[5]

And some, like the member's question describes, will demand to have complete control over a project.

 6(a). Who can sign contracts as owner of the library building and grounds?

This factor is the one at the heart of the member's question.

There are two ways a municipal library can sign a contract with a general contractor for construction:

A) As owner of the building; or

B) With confirmed permission of the actual owner.

"Confirmed permission" is the key term here; the "confirmation" can be in the form of a policy, a letter of understanding, or a lease. It should be in writing, and it should be clear and unambiguous. If it doesn't exist, the library can't (or at least, shouldn't) sign the contract.

6(b). Who [if anyone] can sign contracts as "tenant" of library building and grounds?

If a library is a tenant of its municipality, the lease or license to operate the library within the building should clearly spell out this right or set out the procedures for solely or jointly arranging contracts.

And that's it.

I wish I could offer a more straightforward formula… sort of an A + B = C. But as I said, it's a Rubik's Cube, and a municipal library can have any of several combinations. The bottom line: if the library doesn't either own the building or have clearly articulated authority to sign contracts for and manage risks associated with construction, renovation, or major repair of the building, the board won't be situated to manage the project.

So, for a problem like the one described by the member, I suggest:

Step 1: Research and confirm your library's answers to all six questions.

Step 2: Assess which answers are the cause of any impediment to the library overseeing its own construction projects.

Step 3: Develop solutions to the issues.[6]

This last step is of course a vast step. What makes it extra challenging is that each library will have its own unique solutions, which take months or years to develop and actualize. But I promise there always ARE solutions.

Happy building!

There are a lot of questions packed into this submission!

Let's take them one at a time.

First question: "I have always been under the impression that it is illegal for public libraries to fundraise on their own, aside from 2 book sales per year." [1]

It is not illegal for a public library to fundraise.  It's just that, like starting sourdough[2], fundraising by a public library has many complications.

For more on that, see the analysis in the "Ask the Lawyer" answer posted here: https://wnylrc.org/raq/donations-solicitations-public-libraries.

Second question: If a school district public library no longer has a Friends Group, can it host fundraisers?

Yes, but to briefly summarize the "caveats" mentioned above: a public library should never rely on fund-raising to meet basic operational and strategic needs (that funding must come from the tax base and via established agreements for service). In addition, a public library's fund-raising must adhere to the extensive laws and regulations applying to the solicitation, accounting, use, and investment of such moneys.

Third question: For example, could the library itself host a bingo night and raise money?

Yes, but any event that involves "games of chance" should follow the state law regarding gaming.  For more on that, see the guidance at the "Ask the Lawyer" answer here: https://wnylrc.org/raq/donations-solicitations-public-libraries.

Fourth question: Can a school district public library send out a fundraising letter?

Technically, yes, but because of the caveats, I would say such a letter should go out after:

1. the fund-raising initiative was built into an established fund-raising plan passed by the board of trustees;
2. the fiscal controls for accounting for the money were reviewed and approved by the library's accountant and lawyer; and
3. the text of the letter was reviewed by the accountant and lawyer for compliance AND approved by the board of trustees for adherence to the strategic plan.[3]

Fifth question: Or is it important that all library staff and trustees refrain from fundraising efforts in order to separate public funds from fundraising?

I wish it were this simple, but it's a bit more complex.  If a public library deeply plans for and builds capacity for fund-raising for special initiatives, it is possible for paid staff to engage in what is called (in the fund-raising biz) "advancement".  However, once serious planning is happening on that scale, there are a variety of reasons for a non-association library to work with an affiliated not-for-profit (like a "Friends" or a foundation) to achieve the same objectives.

Sixth question: I am struggling because we have a lot of great ideas, but the future of our Friends Group is unclear.

To the director who submitted this question: you are not alone.  "Friends uncertainty" can happen, and when it does, it is a lousy situation for a director to be in.

Also: I am not surprised you have good ideas for fund-raising; library directors are some of the best sources for good ideas for "Friends" and other library supporters.  After all, directors are the people with the closest eye on the well-being and day-to-day needs of the library. 

But as your fourth question suggests, the energy of you and your staff is best spent focused on those day-to-day needs, which should only include fund-raising if the board has initiated a well-thought-out plan and strategic support for employees assisting with it (translation: there is a budget, wording in a job description, and at least three pages in the updated strategic plan for this, then the director can have responsibilities related to fund-raising... which should never be more than a very small fraction of their duties).

Third:  If at all possible, when a "Friends" group is rocky, this is a time for library trustees to step up and see if they can help revitalize the organization.[4] 

Seventh question: I am wondering what options are available to me as a library director, and my Board of Trustees, if the Friends Group were to dissolve.

There’s an array of options for a public library in this situation:

All of this brings me to the spirit of the question, which is: if fund-raising isn't going so well, what is a director to do?

Trustees who are reading, this is your chance to shine.  If you are so fortunate to have a director with good ideas, it is a good idea to listen to those ideas and see if they can fit into fund-raising by the Friends or by the library itself.  But unless a job description is re-written to include specific responsibility for fund-raising, and such activity is supported by the library's policies and strategic plan (after being carefully reviewed by the library's accountant and lawyer), a director or other staff member should NOT be fund-raising.

In other words: no aspect of fund-raising should ever, ever, EVER be a casual add-on to a library director's list of duties.  While a director's talents can be tapped for fund-raising, if things are going beyond brainstorming, such responsibility should only be imposed to the degree there is a clear and vetted plan[8] for doing so.

I thought this reply was written for directors, but really, it is written for boards, treasurers, and finance committees: if a director is to work on any aspect of fund-raising (which if they do, should only be the merest fraction of their duties), or if a public library is going to fund-raise, make sure the right infrastructure is in place!

What an insightful question.

Here is my answer: no, "delegate" is not quite the right word in this context.  A more suitable phrase could be:

"Per library policy, the Director, or an employee designated by the Director, has authority and responsibility for the selection of library resources."

Here is why:

The word "delegate", in the context of a board operations,[1] pertains to outsourcing very precise responsibilities (such as managing investments[2]).

Many board responsibilities can't be delegated.  For instance, a library board has a legal responsibility to hire the library director,[3] and a legal responsibility to pass policy related to library operations.[4]  Neither of these can be outsourced (or "delegated").

But having responsibility to hire the library director and a legal responsibility to pass policy related to library operations is not the same as performing professional duties required of that director, per that policy.

Just as with other work performed by a credentialed professional, collection management should be governed by board-approved policy, but that policy should not "delegate", but rather authorize, those duties to the person qualified to perform them.

If this seems a little obtuse, here is a small poem to illustrate the point:

A board can hire a lawyer

But cannot practice law.

A board can hire an architect

But plans it cannot draw.

A board can hire a CPA

But can't audit on its own.

A board can hire a barber

But can't cut hair alone!

When a job requires credentials,

When it's licensed or certified,

The duty's not "delegated,"

Instead the action's "authorized."

So when selecting books to add

Or choosing what to weed,

The policy's set by the board,

But the director does the deed.

For these reasons, a collection management policy should emphasize that the board passes the policy governing the process, but the policy empowers the Director to set and apply the selection criteria.  The sample language above is not the only way to articulate this, but it is one way; to see another sample, ask your library system director for the model policy created last year by PULISDO and ESLN.

Thank you again for a thought-provoking question.

First: I'd like to thank the libraries and the library system who brought up this issue.  The questions raised in this submission only materialized because they were committed to careful reading of the law and to doing the right thing.

Second: before answering, I have to set out two caveats.

Caveat #1: before feeling constrained by Public Officers Law Section 3, a town public library should check its charter, because if it hasn't been changed since April 13, 1921[1], the library may already have an alternate method of trustee appointment.[2]

Caveat #2: prior to diving into the question as created by state law, a town public library interested in this path should check its charter and bylaws, since any residency exceptions must not only be consistent with the law, but consistent with those foundational documents.

And with that...

YES, the residency requirement created by Public Officer's Law Section 3 can be changed by local law, and yes, after careful assessment, this can be the way for a town public library to address a trustee shortage.

I put the first "YES" in caps because for the casual searcher, the answer at first appears to be "NO."  This is because back in the 1950's and into the 1970's and 1980's, towns did not have the authority to change the residency requirements for library trustee appointments, and many cases and official opinions set that out in legal stone; an example of this vehement denial is the 1985 New York State Attorney General commentary here.[3]

However, in 1991, the New York State Legislature amended Section 3 of the Public Officers Law to add sub-section 24, allowing the Town of Greenburgh to appoint any person residing in NY as any officer.

According to 1997 opinion of the New York State Attorney General found here[4], the "Greenburgh effect" means Towns may, by local law, designate any position as not requiring residency.

The Attorney General's reasoning:

"For home rule purposes, a "general law" is a State statute which in terms and in effect applies alike to all counties, all counties other than those wholly included within a city, all cities, all towns or all villages. Municipal Home Rule Law § 2(5). It is thus significant that the Legislature has amended section 3 of the Public Officers Law to establish a special residency requirement for any appointed public officer in the Town of Greenburgh. Public Officers Law § 3(24) (first subset). An appointed public officer in the Town of Greenburgh now may reside anywhere in the State of New York. This exception for the Town of Greenburgh has rendered section 3 of the Public Officers Law, in its coverage of appointed town officers, a special, rather than a general law. In establishing residency requirements for appointed town officers, section 3 no longer applies in terms and in effect alike to all towns of the State.

Under home rule authority, since section 3 no longer is a general law with respect to the residency of appointed town officers, any other town may enact a local law inconsistent with its provisions establishing a residency for an appointed town office at least as broad as the residency established for appointed officers of the Town of Greenburgh."

There has been no case law contrary to this Attorney General commentary since 1997.[5] 

Because of this, local attorneys for towns[6] across the state have been able to advise their clients to adopt local laws "establishing a residency for an appointed town office at least as broad as the residency established for appointed officers of the Town of Greenburgh."

Of course, a town public library and town board struggling to find qualified and willing trustees should thoroughly examine this option before working with the town attorney to draft the local law enabling it.  Cultivating trustees within the sponsoring municipality is a critical way to have the supporting community involved and engaged in the operations of the library.[7]  For this reason, putting parameters on who from within the state can be appointed (perhaps limiting selection to the area of service, if it exceeds the town's borders, or limiting it to the county or library system area of service) makes sense. 

And remember, before considering this option, a library should examine its charter.  If the law allows trustees who reside outside the town to be appointed, but the charter language sets stricter criteria, there could be a concern.  So before asking a town board to pass a local law[8] allowing non-resident trustees, examine the charter first![9]

Thanks again to the libraries and the cooperative library system with the tenacity and patience to closely examine the details and pose these questions.  The opportunity to do a deep dive on these issues always brings somet

Here are the questions I would explore with an association library facing this situation:

• Is the job description current?[1]
• Do the bylaws prescribe a particular method of hiring?[2]
• Does the library have a policy or employee handbook with an "internal promotion" or "search" policy?
• Has the board announced any definitive intentions to use a search process?
• Is there a conflict of interest?
• Are there any current employees who may be interested in the job?
• Does the library have a strategic plan or other initiative that clearly requires a broad search?[3]

If the answer to any of the above is "yes,"[4] it would be wise to consider a full search, or to work with a lawyer and get a written opinion before deciding not to. 

In addition to the above questions—which can all relate to legal factors—I would ask:

• Is there a risk that the library's supporting community would regard not conducting a search as a problem?

What could lead a community to see a lack of search as problematic?  A search can be structured to draw input from the community.  It can be a time to drum up interest in the library.  It can be a way to signal to a community all the things the library agrees are important... like finding the best candidate.  So, the decision not to conduct a search could—if there is no evidence otherwise—lay the board open to criticism that it isn't fulfilling its responsibilities.

The decision to not conduct a search, however, doesn't have to mean that a board took the easy way out.  Rather, it can mean that the board has considered the work of the person filling in as an interim and has decided that that person's continued service in the role is in the best interests of the library.

How can an association library board who have decided they have found the right fit, without a search, let the community know the basis of their decision? By putting that basis in a resolution.

Here is a sample:

WHEREAS it is the responsibility of the board to employ a director of suitable qualifications and experience; and

WHEREAS NAME has been serving in the capacity of Interim Library Director since [DATE]; and

WHEREAS NAME's service as Interim Library Director has provided the Board with the opportunity to assess their suitability for the position; and

WHEREAS the Board believes NAME serving as Director would be in the best interests of the Library;

BE IT RESOLVED that that Library shall offer NAME the position of Director of the Library for an annual salary of AMOUNT, with at-will terms[5] and other such conditions, including start date, to be confirmed in a hire letter[6] to be drafted and signed by the President.

AYE:

NAY:

ABSTAIN:

If the interim director's service has also brought specific achievements or noteworthy service (like getting a library through a pandemic shutdown), throw that in, too.

And that's it!  Just make sure it's documented that the decision is in the best interests of the library.

At "Ask the Lawyer" we aim to create resources that are accurate, clear, and above all... useful.

So, for accuracy and clarity, I will answer the questions briefly in the paragraphs below.

But for utility, I am including a "Library Trustee Candidate Service Readiness Checklist" which both a municipal library and municipality can adopt to assess trustee eligibility.

Here are the brief answers:

Question 1: Does an individual have to reside within the municipality in order to serve as a municipal library trustee?

There is no provision in New York's Education Law or regulations requiring this; however, residential requirements for municipal public library boards are generally found in the library's charter and/or bylaws (with the charter being the deciding factor).

Question 2: Can members of the municipal council or legislature simultaneously serve as municipal library trustees?

No, this is prohibited by Education Law Section 260(4).

Question 3: How about employees of the municipality (as opposed to library employees)?

If otherwise qualified, and not barred by the charter and/or bylaws, yes, municipal employees can serve as trustees.

Question 4: Are there prohibitions or guidelines concerning family members of municipal officers or employees?

Relatives of municipal officers or employees are not barred by state law or regulation, but may be barred by a local law or the library's bylaws.  In addition, based on the specific circumstances, such service could violate the library's Conflict of Interest Policy.

Question 5: Who can serve, and who can or should not?

Who CAN serve: Persons over 18 who meet the criteria in the charter and/or bylaws, and are not barred by law.

Who CAN NOT serve: Members of the board or governing body appointing the trustees, those not yet 18, those who don't meet the criteria in the charter and/or bylaws, and those barred by the charter and/or bylaws.

Who SHOULD NOT serve: Those with a conflict of interest that would bar them from performing routine fiduciary duties (like a spouse of a library director who had to regularly vote to accept the monthly director's report); those who can't commit to not missing three consecutive meetings without a good excuse (that is a basis for dismissal under Education Law 226); those who would serve with an intent other than the best interests of the library (which could violate fiduciary duties).

For more information and for the laws that inform the above short answers, please see the "Service Readiness Checklist" below.

Final tips:

• Municipal library boards should consider these issues when adopting or updating their charter, bylaws and their Conflicts of Interest policy. 
• Revisions that exclude specific categories (like relatives of lawmakers or municipal employees, as mentioned by the member) should be reviewed by the library's lawyer to ensure they are a) rationally related to library priorities; b) don't exclude people on the basis of a protected category; c) use up-to-date legal definitions (for instance "relative" not "family member"); and d) can be fairly, uniformly and consistently applied.

Thank you for an important question.  Thinking about eligibility early in the process prioritizes the library's attention to compliance and can enhance the trustee experience.

Thank you for your interest in serving as a trustee of the NAME Library.

The Library's trustees are appointed by the MUNICIPAL BODY for #-year terms.

Together, the trustees operate as an autonomous "Board" that is independently responsible for the library's finances, policies, plan of service, and legal compliance.

Service as a trustee is governed by laws and regulations, as well as the Library's charter and bylaws (a copy of which are attached).

This Checklist is to help the Library and the MUNICIPAL BODY confirm that candidates meet the legal criteria for service as a trustee, and that if appointed, they are willing to serve.

Thank you for completing this important step in exploring service as a trustee.

1.  Name of potential nominee:

2.  Address:

3.  Are you at least 18 years old?

            YES    NO

This requirement is based the Education Law section s 226 and 260, and the Not-for-Profit Corporation Law Section 701(a).  If the answer above is "NO" please reach back out to us in the future.

4.  Do you live within [INSERT MUNICIPALITY or MUNICIPALITIES]?

This requirement is set by the [CHARTER and/or BYLAWS].

[INSERT ANY OTHER REQUIREMENT SET BY THE CHARTER and/or BYLAWS].

5.  Are you a member of the [INSERT MUNICIPAL ENTITY/IES [1]]?

                        YES    NO

If the answer is "YES," you are not currently eligible to serve as a trustee per Education Law 260(4), which provides "No person who is a member of any municipal council or board authorized by this section to appoint public library trustees in any municipality shall be eligible for the office of such public library trustee in such municipality."

6.  Please review the Library's Conflict of Interest Policy, then fill out and sign the attached Conflict of Interest Form and attach. 

This requirement is based on NY's 715-a(c), which requires: ...prior to the initial election of any director, and annually thereafter, such director shall complete, sign and submit ... a written statement identifying, to the best of the director's knowledge, any entity of which such director is an officer, director, trustee, member, owner (either as a sole proprietor or a partner), or employee and with which the [Library] has a relationship, and any transaction in which the [Library] is a participant and in which the director might have a conflicting interest.

NOTE: If you have a conflict, it does not automatically disqualify you from service as a trustee, but it is important that the conflict not bar a trustee from voting on routine items such as the budget, library policy, financial oversight, and employment matters, as those are the core fiduciary duties of a library.[2] We appreciate your careful consideration of the policy and your disclosures. 

7.  If appointed, are you willing to serve?  The board meets at least # times a year, in addition to special meetings as needed. 

This requirement is based on Education Law 260, which requires that the board meet no less than quarterly, and the Library's Bylaws, which require that it meet [INSERT].  Absences are only excused by the [board] in the minutes due to ADA accommodations, temporary illness, or unexpected emergency. [REMOVE IF NOT ALLOWED BY POLICY: The board allows remote attendance on the basis of [INSERT] so long as a physical quorum is present.]

            YES    NO

8.  Please sign below and turn this form into PERSON AT MUNICIPALITY and PERSON AT LIBRARY.

SIGNATURE OF POTENTIAL NOMINEE :___________________

RECEIVED BY LIBRARY ON :___________________________

CONFLICT OF INTEREST FORM RECEIVED BY SECRETARY ON ____________

NOTE: This completed form, and the completed Conflict of Interest form, may be subject to disclosure per the Freedom of Information Law.

Following our "do not reinvent the wheel" rule for "Ask the Lawyer," prior to diving into this, we checked the "Trustees Handbook" posted at https://www.nysl.nysed.gov/libdev/trustees/handbook/handbook.pdf.  On page 57, it provides an excellent summation of the concern at play in the issue of trustees and fund-raising:

"Public library boards generally take care to separate private fundraising efforts (such as direct personal solicitations, as opposed to seeking grants from foundations or government agencies) from normal library operations and board activities since there are restrictions on the appropriate use of public funds." [emphasis added]

The Handbook then points out that this concern is why many public libraries use "Friends" to personally solicit and raise funds.

To this concern about limits on the use of public funds, I would add that when it comes to raising money, it is very easy for the solicitation to run afoul of charitable regulations, required accounting, and limits on allowed fund-raising activities (such as games of chance).

But does this caution merit a complete bar on such solicitations?

To explore that, let's explore the risks.  And we're also going to talk about "raffles", so hang in there, association libraries...this one's for you, too.

Before a board solicits gifts, it should have a full suite of "fiscal controls" and accounting practices to govern how the solicitation is done.  A policy on soliciting/accepting donations, and policy on fund-raising events, a policy on procurement...if a board ensures that its actions in soliciting gifts are following a legally compliant policy, this mitigates the risk of no-compliance.

Let's take the member's specific situation as an example: Could trustee solicitations of gift cards for a raffle used as an inducement to participate in a survey on library use be done carefully enough to avoid a concern?

Here are the risks in such an endeavor: the library is planning to 1) have trustees ask for donations of gift cards; 2) use the cards as an inducement to fill out a survey; then 3)  "raffle" the donated cards; then 4) use the answers from the survey "to assess what the community wants to see in the library now and in the future."

Of the 4 things listed above, only #1--the solicitation of the cards--doesn't give me pause.  If the library has a good donation acceptance policy, and the cards are donated per that policy, and the library follows the conditions for the donation...then it is just another donation.

#2 poses a risk that is pretty easy to mitigate with a little caution.  In the world of not-for-profits in New York, a "raffle" is a "game of chance".  This means a "raffle" can be considered "charitable gaming" which can require registration and particular accounting (see General Municipal Law of New York (Section 186), and registration).

However, as defined by law, a "raffle" in New York requires the purchase of tickets for payment of money.[1] Since the draw described isn't technically a "raffle" (it's a drawing), to avoid any confusion, it might be good to avoid using that word.[2]

In addition, if you have time, it would be good to call your local County Clerk to make sure they don't regard the use of raffle tickets without payment of money to be a "raffle."[3]

Okay, the "raffle" concern is pretty easy to ameliorate. My concerns about #2 and #4 are a little more subtle and tricky.

As stated, the library is hoping the lisupare[4] will inspire people to fill out a survey to assess what the community wants to.

This means that the library hopes to use the results of the survey to make decisions about such things as programming, collection decisions, and the library facility.  From the sound of it, the input could even be used to develop plans for renovation or new construction funded by a bond or other municipal funding initiative in the future.

I imagine you see where I am going here.  By offering a reward with a defined financial value for participating in the survey, the board would risk the assertion of a direct link between financial compensation and a person filling out the survey a certain way.

I know.  This seems ridiculous.  But complaints have been made about far more innocuous things.

To avoid this, I suggest the library consider a different approach to incentivizing broad community participation in the survey. For instance, each person who completes one gets a leaf ornament or token to hang on a display, so the community can see how many people have taken time out of their day to give their feedback to the library.[5]  In this scenario, the trustees could request donations of the ornaments or display (which can then become part of the library's stock of display materials) can just follow the usual policy for accepting donations.

I am sorry to have to write this; I hate throwing cold water at good ideas.  Further, I am not saying the "raffle" (uh, that's "lisupare") is outright wrong.  But libraries function in large part because of the love and trust they foster in the public.  While the notion of a chance to be selected for a monetary gift for taking the time to complete a library survey is lovely, I think it can be interpreted wrongly--either in the moment, or down the road. 

Thank you for trusting me with this question.[6]

[1] Per GML 186 3-b, a "raffle", when conducted by a not-for-profit in NY, is a " game of chance in which a participant pays money in return for a ticket or other receipt and in which a prize is awarded on the basis of a winning number..." etc.

[2] You could go with a made-up word like "lisupare" ["Lie-soo-puh-ray; noun; definition: a randomly given library survey participation reward.]

[3] To address this, I called the NYS Gaming Commission.  Let's just say that unless you are reporting suspected gaming crimes, the Commission doesn't like to get in touch over the phone.  So, then I scoured their materials on "charitable gaming" at https:/www.gaming.ny.gov/charitablegaming/.  While it is clear the law requires "payment" which is defined as "legal tender, check, or credit card", I didn't find anything ruling out a situation like the one described (people "paying" for a raffle ticket by performing a task).  So, getting assurance from your county clerk, who keeps an eye on local charitable gambling, is a good idea.  Hopefully, they will laugh at the very idea that this could be seen as a "raffle."

[4] See footnote #2.

[5] I am a lawyer, not a professional display-maker, so I have no doubt a library employee with experience making displays can come up with a much, much, MUCH better version of this.

[6] Just so readers know, I spoke with the director who submitted this question, who was very cool about all my agita.

YES. Expressly barring library displays based on categories protected by law, such as sexual orientation and gender, is--among other things--a legal issue.

This is not to say a library can't pass a policy on library displays.  A library could easily implement a policy that requires displays to be timely, that they be reflective of the needs of the community, and that they display an array of materials from different sources.  Such a policy, done thoughtfully and with director and attorney input, could be perfectly appropriate, legal, and in line with the mission of a public library.

In addition, such a policy could address and provide established and well-thought-out procedures for the library to address:

• Concerns that a library display violates the bar on political activity by a library;
• Concerns that a library display is age-inappropriate;
• Concerns that the content in a library display is illegal;
• Concerns that the display could objected to by members of the community; and
• Concerns that the display is boring, non-engaging, and/or irrelevant.

But what such a policy could NOT do (without tripping legal concerns) is make blanket rules about display content based on categories that align with identities protected by law. [1]

Further, if such decisions are made in a vacuum, without policy (like an ad hoc board resolution), they run the risk of being both discriminatory and "arbitrary and capricious."  Such a ban--especially coupled with the dialogue and community interaction that might precede and follow it--could set the stage for:

• A claim of discrimination by a trustee;
• A claim of discrimination by an employee;
• A civil rights claim by a patron;
• A report triggering an investigation by the New York Division of Human Rights[2];
• A really awkward moment at the next sexual harassment training, since in New York, "sexual harassment" includes harassment on the basis of sex, sexual orientation, gender identity and the status of being transgender.

In addition, there are many local municipalities that have their own protections for certain protected categories, including sexual orientation and gender identity and expression.  So there is a risk of implicating not just state and federal, but local law, as well.

Of course, such a ban is FAR MORE that a legal issue.  But amidst everything else, it IS a legal concern.  And while their primary duty is to serve the library's mission, public library trustees also have a fiduciary duty to guard against claims that the library has violated state, federal and local civil rights laws.

How would a library board walk back having taken such a position?  Ideally, very quickly and decisively, with confidential legal advice from their local attorney[3].  This is because in and of itself, such a ban might not be enough to trigger legal action...rather like how just vodka isn't enough to make a martini.  But who knows when the vermouth will show up?

That said, if a board is at this point (and especially if the library director and staff are watching, without being consulted[4]), even after serious consideration of a such a policy or directive, change is possible. 

After all, each and every library trustee and employee in New York (and even their lawyers) can always learn more about the New York Human Rights Law,[5] federal civil rights law, and perhaps even the protections in their municipality.

And public libraries are there to enable learning by everybody.

Everybody.

[1] In New York, that includes: race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, marital status, or status as a victim of domestic violence.

[2] https://www.nysenate.gov/legislation/laws/EXC/296 This links brings the reader to a partial list of barred discriminatory actions.  Here is an excerpt (in other words, there's more): " 2. (a) It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement,
because of the race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, marital status, or status as a victim of domestic violence, of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof, including the extension of credit, or, directly or indirectly, to publish, circulate, issue, display, post or mail any written or printed communication, notice or advertisement, to the effect that any of the accommodations, advantages, facilities and privileges of any such place shall be refused, withheld from or denied to any person on account of race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability or marital status, or that the patronage or custom thereat of any person of or purporting to be of any particular race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex or marital status, or having a disability is unwelcome, objectionable or not acceptable, desired or solicited.

[3] And perhaps a check-in with their "directors and officers" insurance carrier.

[4] This type of issue is part of why the author consistently recommends trustees be trained on non-discrimination policies (including sexual harassment).

[5] https://dhr.ny.gov/new-york-state-human-rights-law

Regular readers of "Ask the Lawyer" know one of the cardinal rules is: "Do not reinvent the wheel."  So, before working on this reply, we[1] checked the "NY Library Trustees Handbook (2018),"[2] which has a whole section on hiring library directors.

The Handbook does not reference how "common" having a contract for a library director is, but on page 46, it does emphasize the importance of using a "hire letter" or "memorandum" or "contract" to confirm the hiring terms. 

This is wise counsel.  So, before we build on it to answer the member (and we will!), let's (briefly) talk about the difference between hire letters, memorandums,[3] and contracts.

As most readers likely know, New York is an "at will" employment state.  This means that, barring illegal[4] factors, an employer is free to terminate an employee as needed--and similarly, an employee is free to resign.  Most "hire letters" confirm "at-will" employment.[5]

An "employment contract," on the other hand, puts more bells and whistles on the relationship. It can address a range of things, including the parties' ability to terminate the relationship, and can alter (for a particular employee) the application of an employer's policies.[6]

Typical clauses in employment contracts for library directors are:

• A confirmation of the job description;
• A probationary period;
• A routine evaluation method;
• An assured period of employment (for instance, a 1-year or 5-year contract);
• Relocation costs;
• A recital of specific expectations beyond what is in the job description--for instance, if the director is being employed at the beginning of a strategic plan with expansion objectives, and part of the reason for the hire is a requirement to help keep the expansions on track;
• A benefit structure that differs from other job titles;
• A base compensation and bonus structure based on clearly articulated and quantifiable performance metrics;
• A commitment to a certain amount of budgeted funds and time out of the library for professional development;
• Tuition or professional development reimbursement;
• A consequence for early resignation;
• A list of specific reasons the contract can be terminated early by the board "for cause";
• A list of specific reasons the contract can be terminated early by the director;
• A buy-out or other provision in the event of early termination by the employer "without cause";
• A confidentiality clause;
• A clause regarding support in the event a lawsuit or legal complaint is directed at the employee[7] as a result of the employee performing their duties (similar to what protects a trustee).

Of course, the above-listed items are just examples.

So, how does a library board know when to use a contract?

There are too many factors to list, but here is a tool for assessing if a contract is the right approach to locking in employment terms between a library and director:

If your library answered "yes" to one or more of the above factors, it might be worth considering using a contract!  This is true even if no other library you know of is doing so (or if they all are).

That said, like all things that create obligations, a contract requires CAUTION.  Here are some factors to consider before a library decides to use a contract:

If the answer to any of the above questions is "no," a board should consider if additional steps need to be taken before deciding to offer a director an employment contract.  Employment contracts are like houseplants; although they largely just sit there, they need attention from time-to-time.

And that's my answer to the member's question; not based so much on what is "common", but definitely based on what might be "necessary" for a particular library.

Thanks for a great question, and good luck with your search.

BONUS CONTENT

If there are three take-aways I hope this answer conveys, they are:

1) a contract for a library director can be a positive and helpful thing for both parties;

2) before offering or requesting a contract, a board or director should know what they want, and why (and if a contract can fulfill that); and

3) never, never, NEVER use a generic contract from the internet...always have a draft contract reviewed by a lawyer[8] before it is offered.

To help emphasize these three take-aways, here are three limericks:

A pro-active library board

Over its strategy pored

"We seek a director

who has it together

Should a contract be offered?"

The board then decided "Why yes,

Our new person must fix quite the mess

So we'll set some terms

That our contract confirms

To address our points of high stress."

The right fit was finally found

A lawyer said the contract was sound

So to the future director,

A contract was sent o'er,

And now they are legally bound!

Did this trio of limericks skip the part of the process where the parties negotiate back and forth, and the contract is (hopefully) signed?  Yes.

But hey... the top 3 take-aways are in bold.  That's what's important. Please let us know if they are helpful.[9]

[1] Who is "we"?  The staff at the law office, and in this case, a call to the director of the council whose member sent in the question.

[2] Found as of June 2, 2022, at https://www.nysl.nysed.gov/libdev/trustees/handbook/index.html.

[3] The term "memorandum" is not a legal term.  If a "memorandum" of hire only confirms that the position is at will, it is at-will.  If the memorandum adds to the rights and/or obligations of the parties, it is a contract.  For this reason, I discourage use of the term "memorandum" to confirm hiring terms.

[4] Like discrimination, retaliation, and contract violation.

[5] These days, they also fulfill state legal requirements to confirm the date of hire, the rate and frequency of compensation, and the identity of the employer. For more on this, see the state's "wage theft" rules explained here: https://dol.ny.gov/system/files/documents/2022/05/p715.pdf.

[6] Most employee handbooks will have language confirming that the board can change the policy at will and nothing in the manual is to be taken as creating a contract; this is to preserve the "at will" arrangement.  Any employment contract should consider how it works with an existing or future employee handbook.

[7] Assurance of such coverage is not needed for most "Directors and Officers" (or "D&O) insurance to cover a director, but considering the extent of D&O coverage is an important annual task for the board.

[8] Who knows about both employment law and libraries.

[9] Feedback can go to info@losapllc.com.