Using a Board Committee to Authorize Changes During Library Construction Project
Submission Date
Question
We have a major building project coming up for our library. We are wondering if a committee of the board can be given the authority to make official decisions, which are then ratified by the full board at the following monthly board meeting. We expect the Building & Grounds Committee will begin to meet regularly with a newly appointed project manager to get updates and to approve decisions that can’t wait until a full meeting of the board. It would seem like there must be a means for expediting important business without trying to get a quorum of the board together to approve them every single time.
Answer
For those of you who can’t wait: the answer is YES! A committee can be set up to approve construction project-related decisions between regular meetings of a public library’s full board.
BUT how this authority is set up is critical, so please keep reading.
A public library board’s ability to delegate this type of authority varies based on the type of library, as well as what is in the library’s charter, bylaws, and policies. For construction projects funded by grants and conditional donations, it is possible that grant terms may also impact how authorizations flow, too.
So how does a library set up a committee to get the efficiency described the member’s question?
Let’s break all that down in a fun and literary way.
While day-to-day coordination with a contractor may be assigned to the library’s director (or, at a larger library, a facilities manager[1]) a major construction[2] project requires extra capacity.[3] Even on a smallish project,[4] a library will need people keeping an eye on the overall picture, or things can go askew quickly. We’ll call this the “Dune Factor.”[5]
Another key element in a major construction project is maintaining a tight and trusting relationship with the architect. We’ll call that the “Fountainhead Factor.”[6]
A huge element is that no matter how great a contractor might be, it is vital to keep an eye on them. While a client’s instinct may be “we’re going to trust they are doing it right and give them their space,” that is NOT how to do it… instead, at regular intervals, the work must be inspected for conformity with plans and specs. This can be done by an “owner’s rep,” a “clerk of the works,” or even a properly experienced trustee.[7] We’ll call this is the “le Carré Factor.”[8]
Short note on timing: it is important to consider these factors, plan for them, and budget for them, BEFORE the job is bid out.
Why is that? Because how these roles become part of the toolbox that the library board (and any committee or person with delegated authority) will use to address issues requiring quick action (by the full board, or a special committee).
Here are common construction issues that may require quick action:
- Change orders (for example, the specified door model isn’t available, and the next best thing is $5,000 dollars more);[9]
- Design changes, which also lead to change orders (for example, if the tie-in to an addition needs to change because the old building is deteriorating);
- Discovery of unforeseen conditions (for example, it is discovered that a load-bearing wall is slated for demolition as part of an open floor plan);[10]
- Environmental concerns (for example, uncovering friable asbestos);[11]
- Onsite injury (for example, a worker is injured);[12]
- Negative public relations (for example, if the contractor’s crew is smoking on the library’s property during a break);[13] and
- Bees![14]
For all of this, a library is wise to do exactly as the member describes and designate a committee or person to make decisions.
Here is where things get tricky. Because all public libraries[15] are subject to the Open Meetings Law, the meetings of a committee empowered to take action need to be publicized and open to the public. However, many of the scenarios depicted above will provide little to no time for advance notice, and some actions may require executive sessions due to confidentiality (for example, matters that could be in litigation).
To keep things more streamlined, some libraries will hire an “owner’s rep” who will be at the project (Dune Factor), chum up with the architect (Fountainhead Factor), keep an eye on things (le Carré Factor), and have a certain amount of delegated authority to issue change orders that are within the bounds of a pre-approved budget. The best owner’s reps will have serious experience with similar projects and owe 100% of their loyalty to the library.[16]
For economy, some libraries will have the library director fill this “owner’s rep” role. Many library directors, being detail-oriented folks who are passionate about what’s best for their libraries, are well suited to it, particularly if they have already lived through a construction project or two. However, if a library is going to do this, they must plan for the library director not to be able to perform other functions at the same time; in fact, at least 30% of the library director’s time should be assumed as being spent on the project.
From the legal perspective, using the library director for this role is risky. This is because if something is missed, the liability for the mistake comes back on the library, rather than a contractor. The same concern applies if the library decides to use a trustee to play this role informally. So, whenever possible, budgeting for a contracted and professional “owner’s rep” is wise.
Regardless of the model chosen to address the Dune, Fountainhead, and le Carré factors, a library board committee empowered to call a special meeting to approve items over and above budgeted factors—or to amend contracts—can be formed to take quick action, so long as the library’s charter,[17] bylaws, and policies do not prohibit giving a committee such authority.[18]
Here is a model resolution for setting up such a committee, and it includes consideration of the Open Meetings Law requirements:
WHEREAS the Library is planning to undertake a project to [INSERT DESCRIPTION] (“the Project”);
WHEREAS the Project’s contracted cost is $[INSERT COST] (“Project Budget”);
WHEREAS the Library has authorized an amount of [INSERT PERCENT]% of the Project Budget, for a total of [INSERT AMOUNT], as a “Contingency Budget,” to address emergent project costs, such as change orders; and
WHEREAS the Library wishes to avoid costs and delays related to approving use of the Contingency Budget;
BE IT RESOLVED that [INSERT NAMES] are appointed as a “Project Committee” authorized to call special meetings to address the sudden need for change orders and to authorize via a unanimous vote contract changes for amounts not exceeding the Contingency Budget;
BE IT FURTHER RESOLVED that [INSERT NAME] shall have the authority to sign documents related to approvals granted by the Project Committee;
BE IT FURTHER RESOLVED that the Project Committee is also authorized to timely raise concerns related to construction and construction contracts with the Library’s contractors, insurance carriers, and attorney;
BE IT FURTHER RESOLVED that to ensure Open Meetings Law compliance, the Project Committee shall provide the public 48-hour notice of its meetings whenever possible but shall not delay immediate action to do so, shall maintain minutes of its proceedings together with copies of any change orders or expenditures authorized, and such minutes and documentation shall be reviewed and adopted into the record of the next regular board meeting;
BE IT FURTHER RESOLVED that if the Project Committee meets via videoconferencing as allowed by the Library Board’s policy, the information to attend the public meeting will be publicized on the Library’s webpage, if time allows;
BE IT FURTHER RESOLVED that the Project Committee has the authority to call a special meeting of the full board, if a matter of immediate concern requires approval in excess of its authority or of the authorized Contingency Budget; and
BE IT FURTHER RESOLVED that the Project Committee shall only be dissolved after the expiration of the warrantee period of the Project, which shall be [INSERT NUMBER] years after the issuance of the Certificate of Occupancy.
The reason to keep the committee operating after completion of the project is that if anything goes awry (like the new wing begins sinking six months after completion), the group is still empowered to take quick action (like calling an attorney and an engineer).
Hopefully, of course, every major construction project goes smoothly, and the committee’s work will be over as soon as the ribbon is cut on the new project!
Thank you for an important question.
[1]^ A very cool job.
[2]^ By “major construction project” I mean a new build, an addition, or a major renovation that will impact day-to-day operations at the library for at least two weeks.
[3]^ Unless the director is relieved of 30% of their routine duties during construction.
[4]^ Like painting the exterior a new color; see Anne of Avonlea by Lucy Maud Montgomery for an example of what can go wrong.
[5]^ Among many other things, Frank Herbert’s classic science-fiction novel, Dune, shows what happens when a major facility project (a spice mining operation) does not have an on-site project manager.
[6]^ Ayn Rand’s The Fountainhead is about an uncompromising architect inspired by Frank Lloyd Wright, the Prairie School pioneer who notoriously under-engineered many of his iconic cantilevered structures while demanding the right to control furniture placement, leading to conflict with contractors and owners.
[7]^ NOTE: It is generally a responsibility of the architect to inspect for conformity (this is often part of approving the contractor’s applications for payment), but if you read the fine print in the typical architect’s contract, they do not accept liability for errors related to a contractor’s means, methods, and materials. A second set of eyes, which owe a contractual duty to the library, is wise.
[8]^ Spies everywhere!
[9]^ Yes, these examples have happened… but it was real life, not fiction.
[10]^ Yes, that should have been noticed by the architect. This is why quick action is needed, and part of that action is assessing blame.
[11]^ “Friable” as in loose and thus carcinogenic, not tasty with wing sauce.
[12]^ Yes, this should be covered by the contractor’s insurance, but the library should also have an incident report, in case an action is brought later.
[13]^ Yes, that is prohibited by the Public Health Law. Make sure your contractor knows that!
[14]^ Finding bees during construction is a huge money-burner, since the crews have to halt while the bees are removed. Pro tip: if it’s a swarm and not a hive, just wait, it’ll be gone in 12 hours.
[15]^ Even you, association libraries.
[16]^ For this reason, sometimes an owner’s rep and an architect’s relationship can... deteriorate.
[17]^ The likelihood that a library’s charter would impact this is slim to none, but I’ve seen enough charters to realize that sometimes odd things get stuck in there.
[18]^ In particular, check that the bylaws don’t say, “In no event shall a committee make a decision for the board,” or something similar. When in doubt on this, contact an attorney.
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