Regional Library Councils

SPOILER ALERT!!

For those of you who need to know: in the end, the service at a regional council “counted.”

And now for the questions...

1. How should job candidates respond when faced with situations like this?
2. Do you have some guidance or strategies for navigating this issue?

When this question arose, my office looked at a variety of different local rules for civil service, hoping to find examples of service at a library system and regional council “counting” towards years of service at a library.

What we found was the opposite… local rules and guidance expressly limiting library service to chartered public libraries.

With no examples of common practice to cite, we had to make a legal argument.[1] Here is a modified, genericized version of what was said:[2]

At the request of my client, I’m providing this letter addressing whether a regional library council is a “library of recognized standing” as that phrase is used in your agency’s Civil Service “LIBRARY DIRECTOR” job description.

A regional library council is a creation of Education Law Chapter 16, Article 5, Part 2, Section 255.

A review of that law shows that a library council or system is unambiguously included as one of the many types of “Public Library” entities formed under that section of the law.
When the plain language of Section 255 is reviewed, it is clear that the state’s nine regional library councils are categorized under the law as “libraries,” together with association libraries, school libraries, library systems, Indian libraries, and other library entities recognized by the New York State Education Department (“NYSED”).

Of course, service at any type of NYSED-recognized library might not meet the experiential requirements of a particular job description, but that is another issue. For purposes of service at a “library of recognized standing”, service at a regional library council, library system, or other NYSED-recognized library can contribute to durational requirements.

Thank you for your attention to this matter.

As I have shared, this situation had a happy ending; the applicant’s years of service at a regional council were found to be service at a “library of recognized standing.” But oh, the stress created getting there! So, let’s consider the member’s questions with an eye to getting ahead of the issue.

Whenever the qualification of a place of employment is in doubt, ask your civil service department. If told “no,” remain calm and document the precise reason the service is not being accepted. Then, reach out to other resources for assistance.

As the member points out, a LOT of people have a stake in this issue! Aside from applicants, it can affect library systems and councils that want to ensure they remain attractive employers. It also can’t hurt to get a lawyer involved.[3]

In short, this is not a battle for an applicant to fight alone, and it shouldn’t be a “battle”—just a reasoned conversation between interested parties. By isolating the issue, staying calm, reaching out, and assembling persuasive authority, the right conclusion should be reached.

If a person does all that, and the service still isn’t found to count… well, that may be where the lawyer steps up.

The important thing is to act before the search closes. The further the agency gets into the process, the harder it can be to walk back from an original position and undo any damage.[4]

So: stay engaged, remain calm, and assemble your allies. Civil Service is human, too.

Thank you for an important question.

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

We’ll start with: what is “lobbying?”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What “paperwork and filing” can it save?

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

That said, I have to add two important caveats.

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

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

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

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

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

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

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

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

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

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

Libraries using tax money

Can pay to lobby and remain sunny.

But a public library boosting its idea

Might be engaging in gepvia.

Meanwhile Section five-o-one-cee-three

Forbids political activity.

And no matter how strong your feeling,

Do not engage in electioneering.

So...

Ask a senator to take action?

The law allows that satisfaction.

Tell the voters how to vote?

Publics can’t get in that boat.

Want to support a candidate?

No library org can participate.

Want to advocate at a polling place?

That’s a crime, give it some space.

And...

For the publics, here’s a handy quote:

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

Thank you for hanging in there on this complicated issue.

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

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

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

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

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

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

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

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

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

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

This answer applies to an association library, a cooperative library system, or regional library council (e.g. the Western New York Library Resources Council or the Northern New York Library Network).

It can also apply to a chartered museum or historical society.

If you are a public library (municipal, special district, school district) or a consolidated/confederated library system, feel free to read along for fun[1]...but this does not apply to you, since there are some extra things to consider before such an entity directly engages[2] in activity that looks/acts/smells like lobbying.

But speaking of "looks/acts/smells like lobbying"... what is "lobbying"?

By law[3], "lobbying" is "any attempt to influence":[4]

(i) the passage or defeat of any legislation or resolution by either house of the state legislature including but not limited to the introduction or intended introduction of such legislation or resolution or approval or disapproval of any legislation by the governor;

(ii) the adoption, issuance, rescission, modification or terms of a gubernatorial executive order; (iii) the adoption or rejection of any rule or regulation having the force and effect of law by a state agency;

(iv) the outcome of any rate making proceeding by a state agency;

(v) any determination: (A) by a public official, or by a person or entity working in cooperation with a public official related to a governmental procurement, or (B) by an officer or employee of the unified court system, or by a person or entity working in cooperation with an officer or employee of the unified court system related to a governmental procurement;

(vi) the approval, disapproval, implementation or administration of tribal-state compacts, memoranda of understanding, or any other tribal-state agreements and any other state actions related to Class III gaming as provided in 25 U.S.C. § 2701, except to the extent designation of such activities as “lobbying” is barred by the federal Indian Gaming Regulatory Act, by a public official or by a person or entity working in cooperation with a public official in relation to such approval, disapproval, implementation or administration;

(vii) the passage or defeat of any local law, ordinance, resolution, or regulation by any municipality or subdivision thereof;

(viii) the adoption, issuance, rescission, modification or terms of an executive order issued by the chief executive officer of a municipality;

(ix) the adoption or rejection of any rule, regulation, or resolution having the force and effect of a local law, ordinance, resolution, or regulation; or

(x) the outcome of any rate making proceeding by any municipality or subdivision thereof.

So, "lobbying" is attempting to influence various decisions and actions of state and local government. 

And although the above list doesn't say it, lobbying can be done either by a contractor retained by an organization, an employee of the organization, or through the "grassroots" work of an organization.

With all that said....

YES, a non-profit entity chartered by NYSED (including a university, college, museum, historical society, library, library system, or library council) can hire a lobbyist to advance their interests at New York's state capital, or at the local level, through lobbying. 

That said, before hiring or employing a person to lobby at the state or local level[5], there are some important things to consider.

First, an organization should familiarize itself with the many requirements imposed on lobbying entities in New York (basically, on lobbyists and their clients).

As of October 10, 2023, the state has a helpful guide on those requirements—which are so extensive I would exceed my "Ask the Lawyer" word count[6] if I tried to even summarize it—is posted here: https://ethics.ny.gov/lobbying-overview.

Of those requirements, one of the most significant is this: for any organization that will spend more than $4,999.99 on lobbying during a calendar year (not just on one lobbyist, but overall lobbying activities), there are some routine reporting requirements.  So before signing a contract with a lobbyist or lobbying firm, or budgeting for employee or organizational resources for lobbying, a governing board should consider what is needed to both comply with the law and get the most out of a lobbying relationship and activities.[7]

From these requirements spring some "considerations".  The big ones are:

• All lobby firms or lobbyists hired must be registered with the state[8];
• All lobbying contractual agreements and reporting must meet precise regulatory requirements[9];
• A client spending more than $4999.99 a year on lobbying must file a semi-annual report to the New York State Commission on Ethics and Lobbying in Government (due every July 15th and January 15)[10] which requires creating a login and developing a profile https://my.ny.gov
• Once triggered, the duty to self-report lobbying activity may also include "direct lobbying" (lobbying by employees of the organization)
• The CEO of the organization hiring the lobby firm must attend mandatory ethics training (see https://ethics.ny.gov/information-mandated-ethics-training-requirement-lobbyists-and-clients)
• The objectives of lobbying should be clear and the decision to spend resources on lobbying should be re-evaluated at least annually (when the budget is approved).

In other words: while the benefits can be immense, the decision to retain a lobbyist—or to in any way spend at least $5,000.00 annually on lobbying—comes with added obligations.  Responsibility for meeting those obligations should be assigned with clarity and monitored routinely.

Which means that any organization engaging in lobbying OR employing employees who lobby should have a policy on lobbying.

As readers know, at "Ask the Lawyer," when we say "you should have a policy" we provide a template policy. 

Of course, as with all templates, this template should be reviewed by your own legal counsel and customized to your institution's own operations.  

But it is a good place to start.

Here it is:

To ensure compliance with state and federal lobbying law and regulations, any lobbing done on behalf of the NAME ("Organization") will follow this policy and procedure.

Before passing such a policy, a board should review the guidance linked in the footnotes, and make sure the organization is set up to comply with the requirements.  Whenever possible, having a local attorney review the final version before it is adopted is a wise idea.

Thank you for a great question.  May all your visits to state and local officials be cordial, helpful, and productive!