Committees

It’s true that for all libraries and library systems in New York State cities with more than one million people (currently and for the foreseeable future, just New York City[1]), all committees of library boards of trustees must comply with the Open Meetings Law (OML), pursuant to Education Law Section 260-a.[2]

However, for libraries in New York State cities with less than one million people (all New York cities other than the City of New York), as well as libraries in towns[3] and on Indian reservations,[4] there are a couple other factors that determine whether committees have to follow the OML.

First, outside New York City, a committee of an association library’s board does not have to follow the OML, because while Education Law Section 260-a applies to the boards of association libraries and to committees of association library boards in cities with more than one million people (New York City’s libraries are association libraries), it does not apply to association library board committees in cities with less than one million people, in towns, or on Indian reservations.

Second, as stated in the recent answer for Using a Board Committee to Authorize Changes During Library Construction Project, a committee that has the power to make decisions on behalf of a public library must follow the OML. This is because the OML applies to:

… any entity, for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or other similar body consisting of members of such public body or an entity created or appointed to perform a necessary function in the decision-making process for which a quorum is required in order to conduct public business and which consists of two or more members. [OML § 102(2), emphasis added]

A committee that includes members of the public as voting members does not have to follow the OML, because such a committee cannot make decisions on behalf of its library (“perform a necessary function in the decision-making process”).

The OML clarifies that a “necessary function in the decision-making process shall not include the provision of recommendations or guidance which is purely advisory and which does not require further action by the state or agency or department thereof or public corporation as defined in section sixty-six of the general construction law.”

In short, association library committees outside New York City and “purely advisory” committees do not currently have to follow the OML, while all other committees do.[5]

This answer was guest-written by paralegal Nathan Feist, who specializes in municipal law and open government matters including compliance with the Open Meetings Law and the Freedom of Information Law.

This reply will answer the questions up-front, and then tackle the concern about the full board not seeing a matter since it was voted on in committee in the "background and commentary" section.

The questions:

1.  Can the non-trustee members of a committee vote if one is called for in the committee?

Yes, if a library board has a committee with non-trustee members, those non-trustee members can vote.

2.  Should we amend the by-laws to specify them as voting/non-voting members of committees?

No, there is no need to amend the bylaws.  If the non-trustees are properly appointed committee members, they may vote.  If the non-trustees are not actual committee members but are instead there in an advisory capacity, they should not be referred to as "members" in the first place, and the appointment letter should make that clear.

And now, for some background and commentary.[1]

Back in 2014, the New York Not-for-Profit Corporation law was amended to create two types of board committee:

• Committees of the Board
• Committees of the Corporation

As the member points out, "Committees of the Corporation" are committees that--while they might work hard on matters of great importance to the library--cannot "bind" the board...meaning, they can't make "official" decisions final (authorizing a budget, signing a contract, or voting to hire a director).

"Committees of the Board," on the other hand, are authorized to "bind" the board in certain matters, including investments, endowments, employment, and some matters relating to real property.[2]

While this "Committees of the ______" change was quietly revolutionary in many not-for-profit circles,[3] it was already somewhat familiar territory for libraries, because the Education Law already authorized them to have an "Executive Committee" to "transact business of the corporation" between meetings.[4]  In other words, libraries were already used to designating committees with express and binding authority.  This just gave them more options to bring on more participants who were not trustees.

Now, while "Committees of the Corporation" may not be not tasked with the Really Big Decisions, as the member points out, they can still do very important work.

For example: let's say a library has created a "Public Relations Committee" ("of the Corporation") responsible for monitoring and identifying tactics for the library's presence in traditional and social media.  The committee doesn't sign contracts or even write press releases; it simply monitors and issues advice, meeting virtually once a month to review the library's media footprint and track its various metrics.

Based on some observations, the committee decides the library should adopt a "Social Media Policy."[5]  Since the committee can't "bind the board," they can't vote to adopt the policy, but if they vote to do so, they can:

• Vote to designate a committee member or sub-committee to draft the policy;
• Draft the policy;
• Write a memo urging the board to adopt the draft policy;
• When both are ready, vote to authorize the submission of the draft policy and endorsing memo to the full board.

Now, here's where the member's concern comes in: How does the full board know this work is being done? 

The critical work of committees "of the corporation"--even if they are not "binding" the board--should be connected to that of the full board by a routine report (or meeting minutes) that are "received and filed" by the full board subsequent to every committee meeting.[6] That way, whether or not the committee votes, the board is aware of its work, and what is in the pipeline.  Committee work should never take place in a vacuum; it should always be linked to the operations of the board by reports and minutes.

A high-functioning library board operates like an orchestra--different sections may rehearse separately, and sometimes, there may even be a prima donna moment or two--but the end goal should be harmony. 

A board's various committee types may have different functions, compositions, and authority, but they are all part of that system.  Thank you for a great question that showcases their differences and value.

[1] A valid concern.

[2] They can't do everything, though, so proceed with care!

[3] A wild bunch who brandish the word "fiduciary" the way some people wield the term "linebacker."

[4] https://www.nysenate.gov/legislation/laws/EDN/226

[5] The special focus of a PR committee, by the way, is why a library may want to bring on some non-trustee "ringers" to help with specific issues (a building committee is another great committee where you might want someone for a non-specific set of skills).

[6] Or at least, whenever the committee meets.  Some committees only meet and act once a year; obviously, that committee only needs to submit one report!