Safety

Before answering this question, I have to point to the extraordinary care the member has put into formulating it.

Prior to considering insurance coverage as a question of budget, this member library has:

• Passed policies to promote safety;
• Taken action to monitor its environment and protect itself, its employees, and visitors from unsubstantiated claims of molestation and abuse; and
• Addressed insurance considerations head-on.

This is the exact order of operations: only once an institution has done all it can to prevent a risk of molestation or abuse, should it then consider questions of adequate insurance and budget.

That said, because it can impact the financial viability of a library, right after assurance of safety, it is critical—as this library is doing—to consider questions of adequate insurance and budget.

Why is this important?

No volunteer board member likes to consider the possibility that their library may need coverage for “Abuse and Molestation,” but there are many scenarios where even a library with the best policies and safest practices can have a credible accusation. For example:

• If a library has a room that it allows community groups to use, the library may be named in a case against the group (if the alleged incident took place at the library);
• If an employee engages in abuse without warning, but an injured party claims the library knew the employee posed a threat; or
• If the alleged incident truly didn’t happen, but the library or named employee still needs to be represented in court until it is dismissed (hopefully in the early phases of litigation).

In other words, there are many scenarios where even a library that has taken the best precautions—and which truly is not at fault in any way—can be named in costly legal proceedings. If there is no insurance coverage when that happens, the library will have to pay.[1]

Further, if innocent trustees, employees and/or volunteers are personally named in such proceedings, the library may also want to defend these people (and in some cases, may owe them a defense[2]).

All that said, as the member points out, there may be a point where coverage is so costly, a small library must decide it simply isn’t affordable.

Which brings us to the member’s question: Is deciding to go without “SAM coverage” truly an option?

There is no legal requirement to have SAM coverage. Unlike automobile insurance and some of the other types of coverage listed by the member, such coverage is not required by law (this might have something to do with its lack of affordability).

However, while not required, it is important for library trustees to remember that the bills for a claim of sexual abuse or molestation can easily be in the tens of thousands—and that’s just to get an unfounded case knocked out in the initial phases of litigation. Therefore, a library with a high degree of confidence that such a claim is highly unlikely to occur, OR, if it does occur, highly likely to be defensible, can take the following steps to be ready, without securing SAM insurance:

Step 1: Ensure that the library has a policy barring trustees, employees, or volunteers from any physical abuse of any person in connection with the library. Importantly, this policy should also state that “In the event the library determines that this policy has been broken, termination will be immediate, and the library will not indemnify or defend the violating trustee, employee, or volunteer.”

Step 2: Conduct a criminal background check[3] prior to hiring employees or accepting volunteers and conduct an annual search of the New York State sexual offender registry to verify that no trustees, volunteers, or employees are on the list (if they are, consult a lawyer regarding next steps).[4]

Step 3: Double-check that every use of library space by outside groups is per a written contract that ensure such users are: a) covered by SAM insurance[5] and b) have agreed to “hold harmless and indemnify” the library, its employees, trustees, and volunteers from any claims.[6]

Step 4: Have a “zero tolerance” policy for any abuse or threats of abuse and enforce the policy “without fear or favor” so the library cannot be accused of being on notice of retaining personnel with abusive tendencies (which can support a claim of “negligent hiring” or “negligent retention”).

Step 5: Maintain a policy that upon notice of a potential SAM claim, the library retains legal counsel to immediately conduct a confidential investigation. [NOTE: it sounds almost silly to say this, but since a SAM claim is also a claim of illegal sexual harassment, this “immediate investigation” approach is already 90% met in a library’s state-mandated Sexual Harassment Policy; the difference is that the “immediate investigation” should be done by a lawyer so the results can be used to either defend the library AND/OR to take corrective action with regard to an offending trustee/employee/volunteer].

Step 6: Maintain a fund balance of at least $20,000.00 dollars[7] that can be readily accessible “for trustee, employee, and volunteer indemnification and library defense” upon a vote of the trustees.[8]

Step 7: Be ready to face a financial crisis at the library in the event of a worst-case scenario (a claim that—despite every possible protection—results in a finding of liability).

Step 8: Long-term, consider working with your cooperative library system or another group on an ongoing basis to explore finding SAM coverage for a group of similarly sized libraries. While libraries in New York can’t band together to jointly buy one insurance policy, entities in New York can loosely coordinate to shop for a good deal together and might be able to find a more favorable rate with a collaborative approach.[9]  

I wish I had better news for the thoughtful member library that submitted this question. But if SAM coverage is truly unaffordable, the additional mitigation steps in this RAQ can help with being ready to both deter and fight a claim of liability. What’s admirable is that rather than simply ducking the issue, you are considering what’s best for the library and community.

Thank you for a very important question.

There are three things that are potential obstacles to this request:

1.  Safety (and its flip side: Liability)

2.  Security (and its flip side: Loss)

3.  Charitable Status (and its obscure tax-concept flip side: "Inurements")

Put in one sentence, these three obstacles would be phrased as this: "This exercise group wants to be in the library after hours, but someone could get hurt, or forget to lock the door, and anyway I thought we weren't supposed to let private groups benefit from not-for-profit resources?"

All three of these concerns are valid, but with proper planning, they can be eliminated.  The solution, however, is not found in a Meeting Room Policy, but in a programming arrangement.

What do I mean by "programming arrangement?"

The member is 100% right to suspect that a public library can't create special rights for certain people under its Meeting Room Policy (even if the special rights are for a good cause).  But if a library wants, as part of its mission, to facilitate a particular program, that library can make that program a library program...even if it is led by a volunteer.

When a volunteer-led initiative (like an exercise program, or a story hour, or a garden workshop) becomes a program of the library, all three obstacles are eliminated.

There is no longer the risk of it not being covered by insurance (so long as the insurance covers that type of activity).

There is no risk of a security threat (well… none more so than if it were being run by an employee).

And there is no risk of it being considered an "inurement" or improper benefit (since the use is a library program and not an unfair exclusive benefit to a private person or group).

Of course, there are some catches.  If the program will be a library program, it will need to be open to all, without a fee (just like any other library program).  In addition, the person leading the program needs to be designated as a volunteer with a formal letter.  And most critically, the library should confirm with its insurance carrier that the library's policy covers this type of volunteer work and physical activity on site (NOTE: any library using volunteers, for any reason, should confirm those volunteers are covered by the library's insurance).

Here is a sample letter for confirming the role of a volunteer exercise program leader (or leaders):

RE:       Confirmation of volunteer leadership of the Library's NAME program

Dear NAME:

Thank you for volunteering to lead the Friday Night Exercise program at the library!

As a volunteer, you are helping the library provide an additional added service for the community.

The program will be conducted on DAY/TIME until DATE in the ROOM NAME.

The capacity of the program is #.  Participant numbers should not exceed this, due the capacity of the room.  As the program is open to all in the community, participation is first-come, first-serve.

You are being issued [a key/a security code].  Please alert the library immediately if the key is misplaced.  The key must be returned when the program is ended or whenever the Director requests that it be returned.

All attendees must follow the rules of the library.  If you have any concerns about rules, behavior, or the conduct of a participant, please notify the Director as soon as possible.

In the event any person is injured during the program, or any Library property is damaged, please alert the Director immediately, as we must generate a report.

Please notify the Library as soon as possible if a session must be canceled, so we can alert attendees.

[INSERT any other details].

Thank you,

NAME

Director

I realize this solution might not be ideal (a pre-existing group might not want to be open to just anyone being able to attend), but making the program a library program is the only way to achieve the goal in the question (to keep the program going as is and without offering the same terms to other groups).

Further, it is important to remember that mitigating these risks doesn't mean the library has mitigated all the risks (the key could still get lost, and any exercise class brings with it the risk of injury).  But this solution does mean that 1) if there is an issue, damages should be covered; and 2) no one can accuse the library of playing favorites/improperly allowing access to charitable resources. 

So, with insurance coverage verified, a formal program in place, and a volunteer letter confirming who is leading the program, let exercise commence!

Thank you for thinking about compliance while also prioritizing the needs of your library's community.  With enough foresight and insurance, almost anything is possible.

Short answer: You can't find anything to verify that claim because what is claimed is wrong.

Long answer:  The rental business may be wrong, but I can't blame them the way I can blame someone for parking in a "No Parking" zone.[1]

That's because if they are basing their answer on a plain reading of the relevant regulations (N.Y. Comp. Codes R. & Regs. Tit. 20 § 529.7), the exemption applies only to "sales."

Here's the language from the regulations:

(h) Sales to exempt organizations.

(1) Any sale or amusement charge to or any use or occupancy by an exempt organization to which an exempt organization certificate has been issued is exempt from sales and use tax.

So, a literal reading of the regs suggests that the exemption applies only to sales (and amusement charges[2]); there is no reference to renting or leasing or borrowing equipment.[3]

However, a quick check of advisory opinions[4] from the New York Department of Tax & Finance confirms that rental fees are considered exempt, too. Here is an excerpt that confirms this:

When Petitioner, within 90 days of the transaction, accepts in good faith from its customer an appropriate and properly completed exemption document showing that the purchase is exempt from sales tax, Petitioner is relieved of its burden of proving that the transaction is exempt and need not collect tax on sales or rentals to that customer. See section 1132(c) of the Tax Law.

...

When its customer is a building owner that is an organization exempt from sales tax, Petitioner’s rental or sale of equipment will be exempt from tax.

...

The organization claiming exemption from the tax must be the purchaser of record on Petitioner’s bill or invoice and must be the payer of record. See section 529.7(h) of the Sales and Use Tax Regulations. [emphasis added]

So, there you have it: rentals to tax-exempt organizations are exempt just like sales.

I am sorry you are having to put up not only with mold but also with overly literal HVAC vendors.  I hope you can show them the opinion I've linked to and reach a good resolution.  If not, I suggest you have them call their accountant or the helpful folks at the New York State Tax & Finance Information Center: https://www.tax.ny.gov/help/contact/

When New York’s "proper-cause requirement" for obtaining an unrestricted license to carry a concealed firearm was struck down by the United States Supreme Court on June 23, 2022[1], the New York State Legislature--in a state still reeling from fatal gun violence in Buffalo just weeks before--swiftly passed laws to replace it.[2]

The law they passed on July 1, 2022 was a different approach than "proper cause". Rather than require someone to prove they had a reason to carry a concealed weapon; it removed that SCOTUS-invalidated section from the Penal law, and added Section 265.01-e of the New York State Penal Law: "Criminal possession of a firearm, rifle or shotgun in a sensitive location".

255.01-e goes into effect on September 1, 2022.  It provides:

1. A person is guilty of criminal possession of a firearm, rifle or shotgun in a sensitive location when such person possesses a firearm, rifle or shotgun in or upon a sensitive location, and such person knows or reasonably should know such location is a sensitive location.

2. For the purposes of this section, a sensitive location shall mean:

(a) any place owned or under the control of federal, state or local government, for the purpose of government administration, including courts;

(b) any location providing health, behavioral health, or chemical dependance care or services;

(c) any place of worship or religious observation;

(d) libraries, public playgrounds, public parks, and zoos; ...

Criminal possession of a firearm, rifle or shotgun in a "sensitive location" is a class E felony.  [emphases added; rest of law is below answer]

So, the very plain answer to the member's question is: libraries that inform visitors that the area is a "sensitive location" per Penal Law 255.01-e can bar firearms, rifles, and shotguns on library property.

There are a few practical considerations for this:

1.  Because enforcement of the law requires people to be aware of it, libraries should maintain a map of their property and use it to develop signage that informs those licensed to carry firearms of the applications of the law.

2.  Libraries should work with their local law enforcement and/or private security to be sure their plan for 255.01-e enforcement is well-thought out, is in a written policy passed by the Board, and is practiced plan for enforcement.

3.  Libraries should not rely solely on 255.01-e for assurance of safety, but rather, should consider it another tool in the box (other tools are: a workplace violence prevention policy, an all-hazards response plan, and customized safety measures).

4.  Libraries with shared spaces should meet with their neighbors to assess the application of the law in common areas (note: many of the entities libraries tend to share spaces with--historical societies, community centers, town buildings, etc.--are "sensitive locations" too; see the rest of the list below).

5.  Libraries in areas where local law already restricts firearms in certain areas should explore how this new "sensitive location" law interacts with the laws in their municipality (a job for the library's lawyer).

6.  Libraries in areas immediately adjacent to places where people go hunting should pay particular attention to the 255.01-e's modifications for hunters, and be ready to enforce the law with suitable refinements.[3]

7.  Since enforcement of 255.01-e depends on a person being clearly informed of the area being a "sensitive location", signage should be developed carefully, and reviewed by an attorney before posting.

And now, let's talk about the hard part: diplomacy.

The U.S. Supreme Court's decision to strike down the "proper cause" requirement brought dismay to some, and satisfaction to others.  The reaction to New York's swift response in creating new gun control measures will likely be similarly schismatic. Since a good implementation of 255.01-e will require thorough discussion of it, I think it might be helpful to provide some additional information for perspective.

But before we do that, I will share a small story.

In 2021, I attended a pistol permit class.  A colleague of mind had obtained her permit and invited me to target practice, and since I am a relentless seeker of skills, I wanted to give it a try, and getting a permit was the only way onto the range.

While at my pistol permit class, I learned (or re-learned) several things, the most repeated one being: never point a gun at something you don't want to shoot.[4]

As it turned out, I finished the class, but I didn't apply for a pistol permit. Rather than become a casual weekend target shooter, I opted to learn welding[5], instead.  But I do remember something from the class that is relevant to this answer; when the instructor coached us on how to fill in the application for a pistol permit, he explained how if you wanted to conceal-carry, we would need a special reason (a "proper-cause" as discussed by the Supreme Court)...and then assured the females in the room that for us, it was probably enough of a safety risk that we were women--but the men should be ready with a bit more justification.

If you ever meet me out when I am feeling chatty, we can unpack the implications of this assurance.[6] For now, I'll say, when presented with this, my first thought was: this does not seem consistent with the U.S. Constitution.

It's not every day I find myself aligned with Justice Thomas (who wrote the majority opinion scuttling "proper cause") but for this one, I actually get it.

Which brings me to a cool thing about law, and the reason that despite its ups and downs, I cherish my profession.

In ruling that NY's "proper cause" requirement violated the Second and Fourteenth Amendments, Judge Thomas wrote:

After holding that the Second Amendment protected an individual right to armed self-defense, we also relied on the historical understanding of the Amendment to demark the limits on the exercise of that right. We noted that, “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” Id., at 626. “From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

...

For example, courts can use analogies to “longstanding” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings” to determine whether modern regulations are constitutionally permissible. Id., at 626. That said, respondents’ attempt to characterize New York’s proper-cause requirement as a “sensitive-place” law lacks merit because there is no historical basis for New York to effectively declare the island of Manhattan a “sensitive place” simply because it is crowded and protected generally by the New York City Police Department. Pp. 17–22.

So, the Supreme Court trashed New York's law as unconstitutional, but while doing it, reinforced other elements of Second Amendment jurisprudence related to "sensitive spaces." 

The NY Legislature, taking Hon. Thomas at his word, has now created a lengthy list of "sensitive spaces"...and while it doesn't quite cover the entire "Isle of Manhattan", it is a very comprehensive list.

          In addition to the "sensitive locations" listed above, it includes:

(e) [licensed child care providers];

(f) nursery schools, preschools, and summer camps;

(g) [programs] for people with developmental disabilities;

(h) the location of any program licensed, regulated, certified, operated, or funded by office of addiction services and supports;

(i) the location of any program licensed, regulated, certified, operated, or funded by the office of mental health;

(j) the location of certain disability assistance programs;

(k) homeless shelters, runaway homeless youth shelters, family shelters, shelters for adults, domestic violence shelters, and emergency shelters, and residential programs for victims of domestic violence;

(l) residential settings licensed, certified, regulated, funded, or operated by the department of health;

(m)  educational institutions;

(n) public transportation...airports, train stations, subway and rail stations, and bus terminals;

(o) [any place where you can consume alcohol or cannibis];

(p)  theaters, stadiums, racetracks, museums, amusement parks, performance venues, concerts, exhibits, conference centers, banquet halls, and gaming facilities and video lottery terminal facilities as licensed by the gaming commission;

(q) any location being used as a polling place;

(r) any public sidewalk or other public area restricted from general public access for a limited time or special event that has been issued a permit for such time or event by a governmental entity, or subject to specific, heightened law enforcement protection, or has otherwise had such access restricted by a governmental entity, provided such location is identified as such by clear and conspicuous signage;

(s) any gathering of individuals to collectively express their constitutional rights to protest or assemble;[7]

(t) the area commonly known as Times Square.[8]

Will this list survive a challenge to the law, with people claiming they have a right to bear arms in some of these locations?  Here is the plain-language personal right that the list is up against;

It is undisputed that petitioners Koch and Nash[9]—two ordinary, law-abiding, adult citizens—are part of “the people” whom the Second Amendment protects. See Heller, 554 U. S., at 580. And no party disputes that handguns are weapons “in common use” today for self-defense. See id., at 627. The Court has little difficulty concluding also that the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct—carrying handguns publicly for self-defense. Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms, and the definition of “bear” naturally encompasses public carry. Moreover, the Second Amendment guarantees an “individual right to possess and carry weapons in case of confrontation,” id., at 592, and confrontation can surely take place outside the home. Pp. 23–24

Why do I bring this up?  I am from Central NY (raised in a pro-gun rights area) and my adopted hometown is Buffalo.  I know and respect people on both sides of the gun debate.  This issue isn't going away soon...and libraries that want to implement this law will need to discuss it.

So, when your library decides to adopt a 255.01-e policy and put up some signage, it is worth thinking deeply about the local character of your community, and how they will best absorb and honor this message. The law does not prescribe any particular way to designate how an area is posted as a "sensitive location;" your signage can sound as helpful and friendly--or as formal and stern--as you like. It can quote the law, or, so long as the final text is reviewed by an attorney, it can paraphrase it. The choice is yours, and can reflect the character and needs of your particular community.

Just as critical will be discussing with local law enforcement (or contract security) how this law will be enforced in your libraries.  Training staff to understand and speak knowledgeably about the policy will be critical, too.

Writing this from Buffalo, I wish we lived in the world where we didn't have to address this type of question for something so beautiful as a local library. But we do, and I am grateful for the person who submitted the question, and I wish you well as your libraries work with the new legislation.

[1] The case name is New York State Rifle & Pistol Association Inc. v. Bruen, and it can be found here: https://www.scotusblog.com/case-files/cases/new-york-state-rifle-pistol-association-inc-v-bruen/

[2] Called "AN ACT to amend the penal law, the general business law, the executive law, the civil practice law and rules and the state finance law, in relation to licensing and other provisions relating to firearms", it can be found here.

[3] Other exceptions or limits to the law pertain to: law enforcement; police officers as defined in subdivision thirty-four of section 1.20 of the criminal procedure law; peace officers; retired police officers; security guards as defined by and registered under article seven-A of the general business law, who have been granted a special armed registration card, while at the location of their employment and during their work hours as such a security guard; active-duty military personnel; a government employee under the express written consent of such employee’s supervising government entity for the purposes of natural resource protection and management; persons lawfully engaged in hunting activity, including hunter education training; persons operating a program in a sensitive location out of their residence, as defined by this section, which is licensed, certified, authorized, or funded by the state or a municipality, so long as such possession is in compliance with any rules or regulations applicable to the operation of such program and use or storage of firearms. THIS LIST IS A SUMMARY; check the law when generating policy.

[4] Or as was recited in one of my favorite "Rumpole of the Bailey" stories:  "Never, never let your gun, pointed be at any one; that it might not loaded be, matters not the least to me."

[5] I now have my D1 pre-certification, which means I spent a lot of time welding in 2021 and 2022.

[6] Words like systemic, and sexism, and stereotyping, and violence, and culture will be bandied about.

[7] Prediction: this one will be the one that gets struck down by the Supreme Court in 2026 or so.  It's a First Amendment/Second Amendment bump-set-spike combo. As of this writing, cases are already being brought to challenge the new law.

[8] Don't use this list for research, I tried to pare it down by removing citations and qualifiers.

[9] The men who brought the case up through to the Supreme Court.

For a person who hasn't run into this concept yet, a so-called "First Amendment audit" is an increasingly popular trend where people visit government buildings and demand access to information--along with the privilege to film on site--all in the name of the law, democracy and transparency.

As a lawyer and U.S. citizen, I am all for the law, democracy, and transparency.

The concern raised by the member is that so-called "First Amendment auditors" don't just pop by their local town hall to live out a civics lesson.  Most of these folks are "monetized", meaning they post their recordings on YouTube...for money.  And since nothing draws in viewers like controversy, in the quest to get tens of thousands of hits, "First Amendment auditors" often[1] swap law, democracy, and transparency for rhetoric, bullying...and borderline harassment.

How do these YouTubers[2] create this concern?  As can be seen in their videos, they often come out swinging: filming or streaming while walking around as if "casing" a civic building, knowing that for some workers, this will cause concern.  Further, if/when confronted about what they are doing (usually some version of "Can I help you?") the best YouTubers are masters at using standoffish nonchalance, or passive-aggressive behavior, to trigger suspicion and fear.

Sadly, however, it is sometimes the fearful or angry reaction of those being filmed (town clerks, other employees) that tips things into a legal quagmire...and creates "click-worthy" material.

While mainly focused on municipal buildings (town halls, village halls, etc.) a growing sub-set of "First Amendment auditors" are visiting public libraries. I'd put a link in to some of the more egregious examples that have been created in New York in the last year or two, but I don't want to make money for these folks (they are doing just fine without me).  Let's just say that when the YouTuber is able to hit all the right pressure points, they can really tick off a civil servant--including a librarian.

The frustrating thing is that this doesn't have to happen.

Libraries--even those wholly housed within a municipally-owned structure--are, as the member says, "limited public forums" meaning that the library gets to set policy and rules imposing reasonable, operationally-related parameters on speech ("speech" in First Amendment jurisprudence, includes the right to film and access information).

Among other things, this means that libraries can totally bar or limit filming to certain areas of the library.

Of course, such a bar or limit can't be arbitrary--it must be "rationally related" to the operational needs of the library.  But so long as there is a "rational relationship" between the policy and the needs of the library, such a bar can be enforced.[3]

This means that through policy, a library can decide that patron confidentiality, information access, and the library's overall service to the public require limiting recording and/or streaming on site--a rule that can be enforced just like rules to be quiet in certain rooms, to not eat in certain areas, and to not deface any of the books.[4]

This means that the confident swagger many YouTubers bring to their "audit" game can be met, in the field, with a series of rules restricting their behavior--something (from what I've seen) that many YouTubers are not emotionally nor intellectually ready to honor in the moment.  In other words, just because your policy is legal, doesn't mean a YouTuber will magically turn their camera off!

So enforcing such policy requires forethought...especially since most YouTubers know that if they can get in an argument with a librarian, they will double (or triple) their number of hits.

So, as the member asks: "[H]ow can we stop the filming, as quietly as possible without causing a social media frenzy?"

Here are 10 different tactics[5]:

Have a Policy

Have a policy regarding filming in the library, and make sure that any decision to bar filming is rationally related to library priorities such as protecting patron confidentiality, respect for employees, and smooth operations.[6]

Use Good Signage

However your library decides to exercise its rights as a limited public forum, once it is confirmed in a policy, use prominent and effective signage to inform the public about the rules.

Transparency through FOIL

Since claiming the right to film anywhere in a public library is only part of the YouTuber package, make sure your library has a clear policy and process for requesting library records through the New York State Freedom of Information Law (or "FOIL").[7]

Designated Non-Public Areas

All staff rooms, break rooms, and other areas not accessible to the public should be designated as "No Public Access", with appropriate means of securing the area.  Give your employees a place of refuge (and a place for private information to securely reside).

Select Your Library's Response and Non-Escalation Method

As we've discussed, if you argue with a YouTuber, you might as well just hand them money.

So, while there is no one "right" way to resist escalating a situation, each library should pick its own particular brand of how to keep interactions with YouTubers civil, non-confrontational, and above all very, very, very boring.

For those libraries that do allow filming (whether without restriction,[8] or with some limits), but want to be part of the narrative, I like the idea of chatty engagement about the library's mission, services, and budget (and fundraising).  After all, the YouTuber is there to get information...why not provide it?  Think of the YouTuber's visit as a chance to inform the public of the history of the library, to showcase its services, and alert the public as to how they can donate money to support special initiatives (this is a good reason to have a copy of the library's annual report on hand). If YouTube is helping to draw attention to your library, you might as well put your best foot forward!

For those libraries that don't allow filming, or restrict it to certain times/areas, ensuring that a person who is attempting to film in the library is aware of the duly authorized and posted policy is essential.  After that, if a person persists in violating the policy, a response is down to what enforcement method is selected and practiced, which can include a combination of:

• Policy enforcement in the moment (using practiced security procedures);
• Policy enforcement after the moment (the recording happens without confrontation, but there is a subsequent action for trespass, or other action under Code of Conduct);
• Deliberate non-engagement with the YouTuber using pre-determined language ("It is against our policy for you to film in this location"; and/or "You do not have my consent to film me, I consider it harassing; please stop." said once, calmly.[9]);
• Use of pre-determined, quiet withdrawal of most employees into employee-only areas.

Do not argue. Do not debate. 

And finally, it is important to acknowledge: for some library employees, the visit of a YouTuber can feel threatening (remember, many of these entertainers are trying to get a rise out of people). So as with any other interaction with the public, the clear message to employees must be: Safety First.  If employees are feeling threatened, they should withdraw using the same protocol in place for other safety concerns.[10]

Practice, Practice, Practice

Once there is a policy and clear, engaging signage, set aside time to train employees in the policy, and give them time to practice addressing YouTubers in a non-confrontational manner.  Use role-playing techniques (done right, this can be a fun exercise, even though the actual event might not be so fun).

Coordinate with Security

Not all libraries have private security, but for those that do, make sure they understand what is at stake when dealing with a YouTuber; include security personnel in the practice sessions (if time and budget allow). At the bare minimum, confer with the local police department to know what the response will be if the situation warrants intervention by law enforcement.[11]

Remember: YouTubers are Human, Too

I know it can be hard to recall when someone is pointing a camera in your face and wandering about your library looking like they are creating a map of its security vulnerabilities, but one thing I've learned from working with libraries who have lived through a "First Amendment audit"[12] is that very often the visitor is a member of the community.

In fact, some libraries have received calls from national groups in advance alerting them that a longstanding member of the community will be visiting to film!  (I suspect the "advance warning" was to create an adrenalin rush, but the library was able to use its long-standing relationship with the person to make it a positive interaction.)

So long as a library employee dealing with a YouTuber feels confident about their safety, thinking about the YouTuber as a person who is genuinely curious about your library, and treating them as just another patron on a quest for information, can help cut down on click-bait drama--and serve the mission of the library to provide access to information.

Maintaining that type of perspective is easier if the employee is:

          a) confident that they know the library's policy about filming in the library;

          b) confident that the policy is clearly posted;

          c) confident that the library is on solid legal ground;

          d) confident of how the library as a whole responds to Code of Conduct violations;

          e) confident that the library abides by the law governing access to information; and;

          f) confident about if/how to engage, because they have practiced techniques for positive interactions and non-escalation, and they know leadership will have their back.

And that is how a library can turn YouTube drama into a non-dramatic civics lesson. It is not fool-proof, because if a person is determined to enter a library and create a scene, they will create a scene. But with good policy and practice, a library and its employees won't contribute to it.

Thank you for a great question!

[1] I say "often" because there are some people out there who get this right--and if we are now getting our civics lessons on YouTube, I want to give credit when it is due.

[2] I will not call them "auditors". In my world, an "auditor" reviews your financials, and looks for holes in your fiscal controls.  I call them "YouTubers" or "person recording in the library" because that is a more accurate appellation.

[3] For more on that, see the training video and related materials from the Empire State Library Network's presentation, “Libraries and First Amendment Audits,” which are available through the links found here. This resource also spends a lot more time on the legal underpinnings of what I am summarizing in this "Ask the Lawyer"...so if you want more info on this topic, that's the place to go!

[4] In New York, it is also a crime to deface library books...but it can still also just be a violation of policy!

[5] I urge any library considering any of these to view the ESLN materials, and to discuss their selected tactics with their lawyer.

[6] A model policy is included in the ESLN materials.

[7] For more on that, see the Ask the Lawyer response found here.

[8] At the bare minimum, a policy barring filming of: other patrons without written consent, computer screens, the reference desk, and the circulation area(s) is wise.

[9] This can come in handy later, during efforts to remove a video or to pursue other consequences as a result of the behavior.

[10] If the library currently doesn't have protocols for this, a visit with local law enforcement, private security, or a consultant to develop them is a very high priority. This can go hand-and-and with an OSHA-style "Workplace Violence Prevention Policy."

[11] Only your library can determine what the trigger for calling law enforcement is.  This is something to be discussed and (yes) practiced.

[12] To hear from these libraries, check out the ESLN training materials I keep mentioning!

I have a lot of fun-loving clients.  Here are some examples of activities I've created liability waivers for:

• Mechanical bull riding
• Smashing a car with a sledgehammer for charity
• A "ToughMudder" event
• Sword fighting

I have also worked on liability waivers for more commonplace activities like attending a hockey game, horseback riding, and cheerleading.[1]

The purpose of a liability waiver is to limit a person's ability to bring legal action for injuries related to a particular activity.  Therefore, the trick to creating a successful waiver is making sure it is enforceable when a worst-case scenario--an injury related to that particular activity--occurs.

Because of the high stakes--and because the law in New York can have an impact on how much liability can be waived (for instance, a waiver of liability at certain types of pools[2] is invalid, no matter how well-written) -- a waiver should almost always be custom-crafted to the actual activity, at a specific place, and thus not borrowed from another entity.

The waiver for the mechanical bull rider was different from the waiver for the hockey spectator.

The waver for the person venting their rage on a car for charity was different from the waiver for an equestrian.

The waiver for the sword fighter actually had more in common with the waiver for the cheerleader than you might think...but was still different.

Add to this diversity the fact that in New York, the waiver for a municipal library might have to look different from one used by another municipal library, or an association library, and there are a lot of variables to consider.

So, my answer to the question "Will we need to consult an attorney to draw up the waiver for a fee?" is: if your library wants assurance that the waiver actually protects the library from liability, then YES.

But wait, there's more.

I appreciate that for a not-for-profit such as a library, which likely doesn't have a budget to go around hiring lawyers to hand-craft waivers for every separate fitness activity (or if it does, would rather spend that money on materials and programming), bringing in a lawyer every time you want to sponsor a new physical fitness event can be cost-prohibitive.

So here are a few options between commissioning a new waiver for every fitness event, and just scrapping such events in the first place.

Solution 1: Pass the risk of liability on to the instructor

Any physical fitness class being offered by a library should be led by an instructor with the documented qualifications and insurance coverage to limit and cover the risk of injury related to the activity.

For a yoga class, this means the instructor should be able to show they 1) are certified by an acknowledged yoga authority; 2) are willing to accept responsibility for injury caused by their yoga class, and 3) have insurance that will cover such injury (whether the person sues the instructor, or the library, or both).

A contract showing all this will 1) recite the instructor's qualifications; 2) list their insurance (and attach a certificate showing the coverage; and 3) include a "hold harmless" and "indemnification." That means that if there is a claim of liability resulting from the classes, the instructor's insurance coverage will take the heat.

Such an instructor will, usually, have their own waiver that they require participants to sign, tailored to the precise activity.  Further, to most experienced instructors, none of this will be an outlandish requirement.

Does this mean that start-ups and amateur instructors might not be able to offer classes at your library?  Yes...and while it may seem harsh, that is a good thing.  If a person is great at yoga and loves sharing what they've learned, but doesn't have the documented credentials to assure the library that they know how to teach it, or insurance coverage, they should not be selected to offer a fitness class by your library.

The public attending a fitness class will trust that the library has picked the right person; having the ability to demonstrate a bona fide qualification and insurance is a key sign you've made the right selection.

Solution 2: Work with your insurance carrier

Your library likely has some form of general premises liability coverage.[3]  This means that an insurance carrier, on an annual basis, is sending your library a copy of an insurance policy--and the library is paying for it.

Aside from your board and employees, you know who doesn't want your library to get sued for an injury that happens during a fitness activity?  Your insurance carrier.

Now, what I am about to write may, or may not, be helpful.  In my experience, some insurance carriers will bend over backwards to make sure their "insured" doesn't get sued; they will offer training on risk management, they will offer employee screenings, and they will offer to review forms and policies.  Other carriers, on the other hand, will just accept a check for your library's annual premium, and wish you "good luck" with liability.

When your library is contemplating any physical event with a moderate risk (yes, like Zumba), it is a good idea to check in with the insurance carrier for the library.  Do they have waivers they want you to use (even if your instructor has held you harmless)?  Do they have rules they require you to post (even if the rules are pretty obvious)?  Is there an exception in your coverage (does it not cover fitness classes at all)?  All of this is critical to know before your library takes on any risk for a program. 

And who knows...I've actually had clients get the "all clear" from insurance carriers, who confirm "Yes, that is within the scope of your coverage, let the Zumba commence!"  It all depends on what's in the policy.

Solution 3: "One-Waiver-Fits-Most"

With a "one-waiver-fits-most" solution, an organization identifies a suite of low-risk activities, and asks that their lawyer write "one waiver to rule them all,"[4] and only offer that type of activity...saving costly custom waivers for riskier (and likely rarer) activities. 

What is "low risk" activity?  That is up to your lawyer, insurance carrier, and library.  But it in general a "low-risk" activity is one so low-key and mundane, with no heightened or specific risk, that an enforceable waiver covering it wouldn't require any special bells and whistles.[5]

Common examples of such "low risk" activities might include:

• Nature walks in a town or city park
• Organized bike ride in public park
• Local history walking tour
• Breathing or mindfulness class
• Croquette, badminton, tennis, Wii[6]

Although they might seem low-risk, I would generally exclude from this list:

• Yoga (including chair yoga)
• Dance class
• Any contact sports
• Organized bike ride on public streets
• Anything involving children running

THESE ARE JUST EXAMPLES...each library's list of "low risk" activities to be conducted with a "one-size-fits-most" waiver will change based on the library's type, level of insurance, and tolerance for risk.[7]

While not perfect, the "one-size-fits-most" solution is a cost-effective way to confidently offer programs from a menu of activities, while also protecting the library and not blowing the budget on legal services.

To ask a lawyer to write a "one-size-fits-all" waiver for your library, gather:

• your insurance policies
• code of conduct
• list of typical activities
• any grants funding the activities
• Lease (if your library doesn't own the building)

Be ready to meet for maybe half an hour with the lawyer to discuss the fitness events that your library wants to host.  For municipal libraries, be ready to involve the town/village/city attorney at either the beginning, or the end, since depending on building ownership, and some other factors, the municipality may need to have some input on this too.

Mix that all together, and you should get:

• a list of "low risk" activities,
• a "one-size-fits-most" waiver;
• some guidance on when you need an instructor contract;
• instructions on how low to save signed waivers[8],
• and a sense of reduced-liability confidence.

Happy Zumba!

[1] Cheerleading may be common, but it is fraught with risk!  P.S. NCAA: it should be considered a sport.

[2] New York Consolidated Laws, General Obligations Law - GOB § 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable

[3] In my work with libraries, I have found this is not always the case.  One important annual task for trustees is to ensure that the library has adequate insurance.

[4] In writing.  Always confirm legal advice in writing.

[5] An example of a "bell and whistle" would be the specific warning: "horseback riding is inherently dangerous")

[6] Unless played the way my family plays, in which case, there is not enough insurance in the WORLD.

[7] Although I am willing to bet croquette is on the "low-risk" list state-wide.

[8] Yes, they can be signed and/or archived electronically, but confirm the method with the drafting attorney.

There is no one right answer to this question, but there is a formula for any library to come up with its own, unique answer.

Here is the formula:

[Situation] x [Ethics + Law] / [POLICY/Precedent] = YES or NO

Let me break this approach down.  And trust me, I will give a clear reply to the member's question at the end of all this.

The formula starts with the situation.  In the scenario we have here:

"Local police walked through our Library earlier today with no explanation. Later on, we noticed 2 teens on premises, who we assume should have been in school. We thought the police may have been looking for them as truants, but that is not confirmed."

There is a lot that can be said about this description, but one important aspect of it is the library's care to not reach a conclusion about why the teens were at the library instead of school (while the member describes an "assumption," there is no action on that assumption).  And as noted, law enforcement was not called; rather they "walked through...with no explanation."

This situation is then multiplied by the combined factor of ethics and law.  Both the ALA and NYLA Codes of ethics emphasize patron confidentiality.  Meanwhile, New York's Civil Practice Law and Rules ("CPLR") Section 4509,[1] the state law requiring a subpoena or judicial order before a user's library records can be shared without that patron's consent, does not define "library records" other than to state that they include "personally identifying details."  This is why whatever the situation, ethics, and law are, the answer must be assessed under a library's policy governing patron records (while considering past applications of the policy, to ensure consistent application).

It is at this last factor--policy--where things can get complicated.  With the advent of (sorta) new technologies, the definition of "library records" is not just internet searches and checked-out materials.  It could be what a person printed on a 3D printer, or their image on a surveillance camera, or their use of library wi-fi.  None of these things, right now, are listed in CPLR 4509, but many library professionals would consider them to be library records.

The trick is making sure that when a library takes a position about library records (especially with regard to records that, at first glance, are not about library services, but more about security), it is supported by their policy.

Okay, I know I promised a "clear answer".  So let's re-state the question: "if the police were to ask if we saw the teens, are we able to answer or is that considered a violation of patron privacy as it is with patron information and records?"

Based on a fictitious library consulting a fictitious lawyer, here is one possible answer:

To the ABC Library:

You have requested legal advice regarding whether a library may provide a substantive answer in response to law enforcement enquiring about the presence of a patron in the library.

Your concern is that such a disclosure, based on the visual observations of library employees rather than written/recorded records, could still be considered a violation of patron privacy.  You confirmed that at the time of the inquiry, the library had no operational need to release any such information.

I have reviewed the library's policy on patron confidentiality, and based on the below clause, I advise to not release such information unless there is a subpoena or judicial order:

"Consistent with the ALA and NYLA Codes of Ethics, the ABC library considers any record or information that indicates an individual's use of library services and/or facilities to be a library record under CPLR 4509, unless specifically excluded[2] by this policy."

Therefore, I advise not providing such information without a subpoena or judicial order, unless the requestor accurately points out that a specific law requires it.

Thank you for trusting me with this question.

Very truly yours,

A. Hypothetical Lawyer, Esq.

Of course, as the "formula" at the start of this answer points out, the "situation" may vary from time to time.   And CPLR 4509 does leave room for mandatory disclosure "when otherwise required by statute." [3] Those are the times when a library may want to consult a local attorney to obtain quick advice in the moment.

Since this formulaic balancing of facts, ethics, legal obligations, and policy can be difficult to keep in mind,[4] it may be helpful to summarize it to library trustees, employees, and volunteers this way: “A patron's use of the library and our services are confidential.  If anyone asks about a patron using or being at the library, our standard reply is 'Since patron information is confidential, I need to refer you to [the Director].’”[5]

Thanks for a very thought-provoking question.

[1] As of November 12, 2021, here is the text of CPLR 4509: "Library records, which contain names or other personally identifying details regarding the users of public, free association, school, college and university libraries and library systems of this state, including but not limited to records related to the circulation of library materials, computer database searches, interlibrary loan transactions, reference queries, requests for photocopies of library materials, title reserve requests, or the use of audio-visual materials, films or records, shall be confidential and shall not be disclosed except that such records may be disclosed to the extent necessary for the proper operation of such library and shall be disclosed upon request or consent of the user or pursuant to subpoena, court order or where otherwise required by statute."

[2] What are examples of things to exclude?  If a library is in shared space with a shared security surveillance system, that should be excluded (unless the library has confirmed via written contract that the footage of the library will only be reviewed per the policy).  If the library has a snack bar or gift shop and wants to monitor the point of sale for theft, that could be excluded.  Security footage of a community room used by third-party groups (not individuals) under a space rental agreement is another possible example. 

[3] Such as FERPA. For more on this, see the “Ask the Lawyer” posted here: Patron Confidentiality in School Libraries

[4] Even lawyers need to look this stuff up sometimes.  Just like I don't have some of the finer points of the Domestic Relations Law at my fingertips, not all lawyers can recite the requirements of CPLR 4509.

[5] Or designated positions with regular training and/or adequate experience to appreciate the fine points of the library's policy.

[NOTE: for background to this short answer, please see the much longer "Ask the Lawyer" Background checks and fingerprinting for new employees, that addresses the tightrope walk/legal minefields of employee background checks.]

So, does a school district public library[1] implementing a background check for new employees have to also check their current ones?

The answer is: no; barring an over-ruling requirement (such as a term in a union contract) a library board can implement a background check policy for all hires going forward, without imposing a "retroactive check" requirement for current employees. 

However, I would never advise that approach.  Here are three reasons why:

1.  Possible discrimination

A policy to only check the backgrounds of "new" employees could have a disproportionate impact on candidates on the basis of age, or gender, or race (to name a few).  By not checking everyone, an employer risks the appearance of (or actual occurrence of) illegal discrimination.

2.  Possible liability

Employee background check policies are implemented to reduce risk.  If an employer is using employee background checks to reduce risk, there should be a very good reason for not checking all employees (such as a union contract that bars it[2]), or the employer risks a claim of negligence.

3.  Worker relations

A work environment should be a place of high trust.  By subjecting one class of employees ("new" employees) to heightened scrutiny, in addition to the possible concern mentioned above in "1," it creates an unbalanced environment for trust.  This is bad for morale.

I appreciate that background checks can come with a cost, so minimizing their frequency is helpful.  I encourage any library implementing such a policy to check with their "Directors & Officers Insurance" carrier, since sometimes, carriers offer resources to defray and even pick up the costs of the check.

Thank you for a thoughtful question.

[1] Of course, if a school district public library is in a school (not a common scenario; school district public libraries are largely autonomous and separate from school district property), and if the librarians are on the payroll of the district, then they are already being background checked and fingerprinted, per the chart here: http://www.nysed.gov/educator-integrity/who-must-be-fingerprinted-charts.  Of course, this question pre-supposes that the board is setting the hiring policy, which means the library is autonomous.

[2] Just to be clear, a contractual obligation to not conduct criminal background checks should never be in a collective bargaining agreement!  However, some reasonable restrictions on the scope of such a check would be consistent with NY law and policy.

Behold, the humble skateboarder: wheels spinning, scabby knees, and (if they have gotten over the fact that even when worn by Tony Hawk, it looks dorky) brain carefully protected by helmet, ready for action.  Never has a humble sport posed more of a challenge to local governments, park designers, architects, and urban planners; lay down a relatively smooth surface, and there they are, ready to challenge both gravity and the rules governing property.

As a lawyer who studies[1] how the law impacts what people do--and how we do it--I find skateboarding fascinating.[2]  Since at least the late 80's,[3] in town meeting after town meeting, legal case after legal case,[4] site design after site design, public authorities and property owners have attempted to control when and where people can skate (and bike, and rollerblade, and hang out while watching others do those things).

That we as a society often fail at such prohibitions and dissuasions is shown by the magnitude of letters-to-the-editor and news reporting regarding parking lot/ramp/sidewalk incident and injury.[5]  It has also spawned an array of dangerous and off-putting site design, such as metal rivets on walkways and spikes on hardscaping.[6]

Of course, this question is not about skateboards, but rather, about signage effective enough to reduce risky activity and to avoid liability while keeping library premises welcoming to everybody.[7]

For any library, museum, or other public cultural institution wrestling with this issue, this poses a conundrum.  The mission of your institution is to be accessible, inclusive, and to serve your community.  Yet at the same time, the promotion of a safe parking lot and grounds during open hours is critical...while after-hours promotion of safety is just as important (especially if you offer 24-hour Wi-Fi that is accessible in the parking lot and grounds). 

How can an institution achieve this balance?

For an institution confronted by this issue, there is a five-step process that must be conducted:

STEP ONE: Confirm who legally owns and/or controls the parking lot and grounds.[8]  Does your library own the lot, or is it rented and subject to the terms of a lease?  What you learn during this step will show who has to solve this issue (with a landlord, collaboration will be required).

STEP TWO:  What insurance covers the lot, and what types of incidents are covered?  This step will provide insight into how your institution is set up to manage the risks you've identified.

STEP THREE:  What is the purpose of the parking lot and grounds?  What functions do those resources serve?  Hopefully, the uses are already limited to only things that serve the mission and plan of service of the library.  However, in the case of a lease or shared premises, that might not be the case.

STEP FOUR:  Confirm and harmonize everything from the first three steps. 

This fourth step sounds simple, but it can take many forms. 

For instance:

• If the land is owned by the library, it will require verifying that no one else is using the lot (unless there is a lease and insurance covering the non-library use);
• If a private party owns the lot but leases it to the library, it will require checking the terms of the lease; 
• If a supporting municipality owns the lot, it will require confirming who truly controls the space;
• If the property is insured for general liability, it will require contrasting what the insurance covers, with what it is being used for, and what it is intended for, and how it is being controlled;
• If the property is not insured for general liability, it will involve assessing if/how the library is protected from liability.  

NOTE: For these reasons (and more), whenever, possible, "Step Four" should be done with a lawyer.

STEP FIVE: Only after completing Steps "One" through "FOUR" should a library board approve a signage plan.

Why these steps?  Because the details they draw out will help your library determine the final text of the signage, whittling it down from many permutations.  For instance:

• A suburban library that leases its property within a strip mall will want to put most of the onus for liability back on their landlord (especially if parking facilities are shared with other tenants). 
• A rural library with lots of its own land, but near a public park, has the luxury to post signage that says "Parking lot and grounds are for library activities only; please use ABC Park for recreational activities."
• A city library located within a city-owned building may need to coordinate signage with a city department (or might not).
• A library (in any location) that is neither designed nor insured to safely host any type of unsupervised recreational activity[9] on its grounds (whether in the parking lot, or the front yard, or on the roof) can post exterior signage that says: "No recreational activity on the grounds unless authorized by the Library."[10]

In addition to helping your library check all the boxes (ownership, risk management, mission, messaging), I advise this approach because it will position your library to give your signage some personality...something that projects the library’s values and mission out into the community.

For instance, there is nothing wrong, after your property/purpose/insurance analysis, with posting a friendly sign like this:

"Our parking lot is for the safety and convenience of

our Library's diverse and wonderful community.

Please limit your use of our lot to parking your bike or car

while using the services of the library."

Or, if the "personality" of your library is a bit less celebratory, and there has been collaboration with local law enforcement on the issue, and it has been determined that it is safest to employ some forceful messaging, the signage can say:

"Parking lot use limited to parking for

library patrons, employees, and vendors.

POLICE ENFORCED."[11]

Which brings me to the member's actual question:

"Would something more specific like [listing barred activities] be a benefit or would it be worse because if they hurt themselves doing an activity other than those listed they can say they were in their right?"

As you can see, I do not recommend barring a list of activities--partly for the reason in the question, but more fundamentally, because a list of “forbidden” activities only invites quibbling during enforcement (see footnote 9), which creates a needless headache. 

In my experience, those who actually have to enforce a policy (a director, a security officer, a police officer, a municipal employee), should be meaningfully consulted during its development, and are better served by a final product that positions them to quote a broad definition of purpose, together with a bar on unrelated activity, such as:

"This parking lot is for parking only.

No recreational use allowed at any time."

And finally, let's talk about that all-important STEP SIX: Dealing with the Human Factor.

We all know this: an institution can install signage six feet high, in flaming letters, and if someone wants to trespass on it after hours, that signage will not stop them.

If that is true, what is the purpose of the signage?

The purpose of the signage is 1) to promote safety; 2) to reinforce mission; and 3) to be able to show that, if injury occurs, the library in no way encouraged, condoned, or sanctioned the activity that caused it (and in fact, forbid it).

Now, while that is important, there is one other thing I must get out there while we're talking about limiting premises liability: just as critical as clear, enforceable signage is ensuring that the library is not maintaining a hazardous condition.

Why?  If the injury a trespasser experiences on property is related to a known defective condition (a pothole, for instance, or a heaved sidewalk) the owner/controller of the parking lot could still face liability.  To truly promote safety and guard against liability, an owner who invites the public onto their land must be able to show it was not "on notice" about the defect, or that if it was, it had taken adequate steps to protect the public from the hazard (surrounding the pothole by cones, or getting it temporarily filled with cold patch, for instance).

This is why a vigorous facility maintenance plan and deferred maintenance/contingency repair budget is just as--if not more--critical as proper parking lot signage.

In closing, I have to say: writing effective property signage is a tricky thing.[12]   Since there is no perfect way to do it, I advise aiming for something that clearly limits the use of the restricted property to its core function (in this case, parking), while also reinforcing the identity of the library as a community resource.  Here is a model to consider (after your library follows all the steps):

"To promote a safe and welcoming environment,

this parking lot is for parking and library-approved events only.

All other uses must be approved in writing by the library.

To inquire about using our lot for a community event, call ###-###-####."

...with shorter, smaller, punchier signs at key areas to reinforce the core message:

"No playing in our parking lot at any time.

Safety first!"

I wish all libraries reading this a reduced-risk, injury-free parking lot.

[1] In the field.

[2] I had a board in the 80's, but I only ever attained the level of skill shown in Tom Petty's "Free Fallin'" video (which is to say: not very much).

[3] And maybe earlier?

[4] I like this one: People v Smith, 160 Misc 2d 1070 [Just Ct 1993]

[5] I am not going to cite a study here.  Rather, I will cite NY Insurance regulation 11 NYCRR 27.3, which includes in a list of specially elevated risks: "Asbestos, Fungi and Water Damage Remediation ... Amusement Parks and Carnivals Property...Amusement Rides and Devices ...including bumper cars, go-carts and go-cart tracks, giant slides, skateboard tracks, roller-blade tracks...."

When you want to know if something is statistically risky, ask an insurance carrier.

[6] These measures are also used to "dissuade" people from sleeping and getting comfortable in public spaces, an overlap worth contemplating.

[7] A skateboarder or roller-blader on a sidewalk or in a parking lot can pose a risk to a person walking with a small child or stroller, using a walker or wheelchair, or walking an animal.

[8] Although the question was confined to the "parking lot" I am adding "and grounds" since this issue doesn't just involve parking lot concerns.

[9] BMX bikes, skateboards, and roller-blades take the brunt of this type of issue, but frankly, does your director want to quibble over policy when a group of rogue folk-dancers hosts an event in the parking lot after-hours? 

[10] I like this last bullet because it reserves the right of a library to host a planned recreational event, but to otherwise bar them on the property.  Further, by avoiding the term "loitering," it reduces the risk of confusion for those who need to park or sit on the grounds after-hours to use a library's 24/7 free Wi-Fi.

[11] If you go with this one, confirm with your local PD that they will do this in a way that is consistent with the mission and role of the library.  NOTE: I appreciate that in some places, this will not be viewed as a viable option.  The mission of your library should be the guiding factor in deciding whether or not to involve law enforcement or private security in this type of policy.

[12] Whenever possible, it is good to use a licensed architect or credentialed municipal planner to design signage; they will pay attention to things like reflectivity, placement, font choice, and ADA accessibility.

This...is a big question.  It's only three short paragraphs.  But it's BIG.

It's "BIG" because the risks of getting this topic wrong are immense--from not only the obvious risks involving legal concerns, but risks involving ethics, privacy, and the goal at the heart of the issue: safety.

It's also BIG because the phrase "background check" is not tied to a precise or static definition.  When someone says "background check" in the context of employment, here are just a few of the things it could mean:

• Criminal background check
• Credit check
• Military service separation check (form "DD 214")
• Motor Vehicle Records ("MVR") check
• Transcript and education records check (including student disciplinary records)
• Licensing/professional oversight body (medical board, bar association, etc.) check/confirmation of good standing
• Civil litigation history review
• Reference check
• Previous employment verification
• Social media/publications check

Each of these "checks" comes with a wide array of legal requirements--or typical legal cautions--governing its use.

For instance:

• A criminal background check should only be used by an organization if it has an up-to-date "Criminal Background Check Policy," because in the state of New York, denying employment based on a criminal conviction requires the employer to do a precise analysis (of which the denied applicant can request a copy).[1]
• A credit check should only be used by an organization if it has an up-to-date "Credit Check Policy" to ensure the regulations in the Fair Credit Reporting Act ("FCRA") are being followed.[2]
• A MVR should only be used by an organization if it has an up-to-date "MVR Check Policy" that clearly sets out the types of moving violations and other records that would flag a basis for non-employment.[3]

For all types of checks, the institution using them should have a clear policy governing what jobs require them, and how such records are evaluated, maintained, and disposed of.

And finally: when developing, implementing, and routinely using any type of background check policy, an organization is wise to take care that it is not incorporating factors that can be shown to disproportionately negatively impact (i.e., discriminate against) a particular category of applicant.   

Okay, with all that off my chest, let's answer the actual questions.

First question:

Do background checks, fingerprinting, etc., need to be done for all positions?

The degree to which background checks and documentation of identity must be performed are governed by two things: what is legally required, and what the risk management practices of an institution dictate. 

These two factors mean that practices will vary from place-to-place.  A librarian working within a public school district in the state of New York will be subject to a criminal background check and must be fingerprinted[4] just as any other regular employee within their district. A librarian at a public or association library is not required by law to have a criminal background check, nor to be fingerprinted,[5] but an institution could decide, for risk management purposes, that a position requires that level of scrutiny for safety and security.  

Second question:

Does it need to be posted in the job advertisement that there will be a background check for the successful candidate or all finalist applicants?

There is no requirement in the law that a job advertisement has to disclose a background check in the job advertisement.  However, prior to obtaining and using any information from a third party whose business it is to provide background information, an employer must notify an applicant; this notice must be in writing and in a stand-alone format.  Further, before a negative decision is made based on such information, it must be disclosed to the applicant.  A good resource on this is the Federal Trade Commission,[6] but the third party provider, if they are a true professional, will provide the forms for each of these steps.

Now all that being said, it may be that some local hiring procedures or collective bargaining agreements require the disclosure of background checks in a job notice.  Further, some employers may want to disclose their intent to use a background check to avoid surprising candidates further into the process.  There is no bar to making such an early disclosure, but if given, such notices should be carefully drafted to avoid implying that those with arrests or criminal convictions[7] will not be considered for the position.

Third question:

Can the background check need to include a financial check and a legal check?

Yes, absolutely. A background check can include a credit check, a search for liens and other debt instruments, a review of criminal history, a consideration of driving record, and any combination of the items I listed at the top of this reply.  Just be careful: if your library or system relies on a third party to supply that information, it must follow the guidance from the Federal Trade Commission (see that link in footnote 6).

Okay, at this point, I have to re-emphasize: before using any type of check, a library should have a policy covering that type of check, and that policy should cover all check-specific legal compliance, as well as: when the check is conducted, how it is conducted, how the information is used, and how the documents related to it are disposed of/retained. [8]

When developing such a policy, a good rule of thumb for an institution considering any type of background check is to be able to clearly answer the question: "Why are we doing this check?"  While the reasons will vary, the answer should always relate to the essential functions listed in the job description, and the nature of your library.

For instance: if a position will create opportunities for a person to spend unsupervised time with vulnerable populations, a criminal background check and rigorous prior employer check is wise.  If a position requires a particular credential, verification of that credential makes sense.  And if you are hiring someone who will frequently have to drive the bookmobile, a motor vehicle records check is almost always imperative.

On the flip side: if a person is being hired for a job that doesn't require driving, a "current driver's license" should not be required. If a person will never have access to financial information or fiscal resources, a credit check is likely not necessary. And if a would-be library clerk has a DWI that is 20 years old--and no other criminal history--it is likely the conviction is not a basis to eliminate them from consideration.

Last question (and it's another biggie):

And tangentially, am I correct in my assumption library staff are not considered mandated reporters? Are there guidelines for this as well?

"Mandated reporters" is a legal term under Section 413 of the NY Social Services Law.  Professionals listed in that section are required to make a report when they:

 "...have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or maltreated child, [OR] when they have reasonable cause to suspect that a child is an abused or maltreated child where the parent, guardian, custodian or other person legally responsible for such child comes before them in their professional or official capacity and states from personal knowledge facts, conditions or circumstances which, if correct, would render the child an abused or maltreated child."[9]

I have placed a list of the "Mandated Reporters" set by Section 413 below this answer. As you can see by reviewing the (long) list, library employees (unless their function also fits into one of the categories listed in 413) are NOT Mandated Reporters.

Of course, a library--or an institution that hosts a library--can decide and enforce via policy that its employees have an affirmative duty to report observed or suspected child abuse (or any abuse) that occurs on their property or in their programs.  Many insurance carriers actually require their insureds to have such a policy.[10]

[NOTE: If an employer has any type of "report abuse" policy, employees should be trained on how to make such reports no less than annually.  The average person can have a trauma response to witnessing abuse, which can impact their ability to report it, as well as negatively affect their well-being.  Routine training on how to recognize and report concerns, and experienced support for reporters, can help with this.]

Thank you for an important series of questions.

List of "Mandated Reporters" under Section 413 of the Social Services Law (also called "human services professionals[11]"):

...any physician; registered physician assistant; surgeon; medical examiner; coroner; dentist; dental hygienist; osteopath; optometrist; chiropractor; podiatrist; resident; intern; psychologist; registered nurse; social worker; emergency medical technician; licensed creative arts therapist; licensed marriage and family therapist; licensed mental health counselor; licensed psychoanalyst; licensed behavior analyst; certified behavior analyst assistant; hospital personnel engaged in the admission, examination, care or treatment of persons; a Christian Science practitioner; school official, which includes but is not limited to school teacher, school guidance counselor, school psychologist, school social worker, school nurse, school administrator or other school personnel required to hold a teaching or administrative license or certificate; full or part-time compensated school employee required to hold a temporary coaching license or professional coaching certificate; social services worker; employee of a publicly-funded emergency shelter for families with children; director of a children’s overnight camp, summer day camp or traveling summer day camp, as such camps are defined in section thirteen hundred ninety-two of the public health law; day care center worker; school-age child care worker; provider of family or group family day care; employee or volunteer in a residential care facility for children that is licensed, certified or operated by the office of children and family services; or any other child care or foster care worker; mental health professional; substance abuse counselor; alcoholism counselor; all persons credentialed by the office of alcoholism and substance abuse services; employees, who are expected to have regular and substantial contact with children, of a health home or health home care management agency contracting with a health home as designated by the department of health and authorized under section three hundred sixty-five-l of this chapter or such employees who provide home and community based services under a demonstration program pursuant to section eleven hundred fifteen of the federal social security act who are expected to have regular and substantial contact with children; peace officer; police officer; district attorney or assistant district attorney; investigator employed in the office of a district attorney; or other law enforcement official.

[1] This is why the phrase "Must have no criminal history" or the like must not be included on a job notice.  For more information on this, visit https://dhr.ny.gov/protections-people-arrest-and-conviction-records.

[2] More info on this further into the answer.

[3] For some employers, this criteria is set by the provider of the organizations’ automobile and/or general liability insurance; this is especially true for organizations that use "company" vehicles.

[4] As listed here: http://www.nysed.gov/educator-integrity/who-must-be-fingerprinted-charts.

[5] Unless there is a very obscure local law I have been unable to find.  If you are aware of one, please email me at adams@losapllc.com.

[6] More information on how/when to give this notice is here: https://www.ftc.gov/tips-advice/business-center/guidance/background-checks-what-employers-need-know.

[7] Or other categories protected by law.

[8] That's right: I put that in italics, bold, and underlined it!  An "Ask the Lawyer" first.  No organization should ever "wing" a background check--of any kind.  There is too much at stake.

[9] I know, there is a lot of room for interpretation in this language; when in doubt, seek guidance.

[10] I think of this as the "Penn State Victims Requirement."

[11] 18 NYCRR § 433.2