Templates

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

With all that said....

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

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

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

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

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

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

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

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

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

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

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

But it is a good place to start.

Here it is:

[NAME] Lobbying Policy	Adopted by the Board of Trustees on: DATE
Related policies:   [any policy that addresses the bar on political activity and who speaks for the organization]	To be reviewed by the Board of Trustees not less than every 5 years

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

Action	Responsibility
Identifying strategic objectives meriting retention or employment of lobbyist by Organization	Board, Director
Selecting qualified contractors for lobbying services	Director
Signing contract for lobbying services	Director, after resolution approving contract by board
Ensuring Organization files of client semi-annual reports required by New York when required (when at least $5,000.00 is spent on lobbying in the calendar year).	Director
Monitoring state and federal lobbying filings to ensure accuracy, consistency with contract requirements, and awareness of Organization's footprint in a publicly accessible filing.	Director
Maintaining a system to track all expenses related to lobbying by and on behalf of Organization.	Treasurer, Board
Ensuring all expenses related to lobbying are properly and timely entered by Organization.	Director and any designated personnel or retained book-keeper
Monitoring annual expenses for lobbying to ensure consistency with budget, contract, and this policy.	Treasurer, Board
Monitoring performance of all retained and employed lobbyists to enable assessment of contract performance prior to termination or renewal.	Board, aided by report of Director.

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

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

 

The answer to these highly specific questions will assume readers have reviewed the ALA's excellent general guidance at https://www.ala.org/advocacy/privacy/guidelines/videosurveillance and the "Ask the Lawyer" guidance here: https://wnylrc.org/raq/patron-privacy-and-police.

With that background taken as read, let's address these questions related to a closed-circuit camera with audio recording at a school district public[1] library:

Is it legal to record sound [and/or] it is a violation of patron privacy?

In New York, recording third parties without their permission[2] is illegal "Eavesdropping" per Penal Law Section 250.05: a class E felony.

Section 250.05 is part of Penal Law Article 250 "Offenses Against the Right to Privacy," so from both the legal and ethical perspective, such recording is a violation.

Can board members review the tapes?

Assuming the tapes are visual only (and not illegal Eavesdropping), from the legal perspective, a board member could view a security camera recording, but from the ethical and risk management perspective, such viewing should only be per an established policy.

How does this all play out in the real world?

Put plainly:

A non-association library board in New York State considering use of a security camera system should ensure such a system is only used once there is a policy in place, and that policy should address the following questions:

• What is the purpose of the cameras?
• Where are the cameras pointing?
• How does the library ensure use of them is consistent with applicable ethics?
• Are any of the generated recordings patron library records?
• How long are the recordings kept for?
• Once the retention period is past, how are the recordings disposed of?
• How are the records secured against data breach or misappropriation?
• Who gets to view the recordings, and why?
• How will FOIL requests for the footage be handled?
• How will other requests for the footage be handled?
• When the library deems it necessary to retain recordings past their retention term, how are the recordings saved?
• Will any of the records be archived?

Below is a template policy for a non-association public library addressing the above questions.  Areas in yellow may be customized for the needs of a particular library (make sure you remove the footnotes).

Thank you for an important array of questions.

 

NAME Library Policy Regarding Use of Security Cameras and Recordings	Adopted by the board on: DATE
Position responsible for coordinating compliance: Director[3]	Reviewed by the board: Annually

 

POLICY

To achieve the desired balance user privacy assurance and on-site security, any use of security cameras and of records generated by such cameras ("Security Recordings") in the Library will follow the below provisions.

A. Limited Use

Cameras will be used to generally monitor the areas noted on the floor plan or survey attached as "A."[4]

Cameras will never be used to monitor the following: [insert specific areas or angles to affirmatively be excluded; common examples are bathrooms, reference desk, check-out desk].

Cameras will be set up so they do not record the content of media accessed by patrons.

B. Notice

In all areas subject to security camera recording, the Library will post a sign: "The Library values patron privacy and security.  This area is monitored by security cameras."[5]

C. Patron Records

Security Recordings showing people are considered to be patron records and the Library will not release such recordings to third parties without a court order or subpoena.[6]

D.  Viewing and Use of Security Recordings by the Library

The Library will use Security Recordings to address general and specific security needs, including but not limited to:

• Assessing safety concerns
• Addressing Code of Conduct-related incidents
• Assessing operational and facility needs
• INSERT

When footage must be reviewed by the Library, such review must be authorized by either the Library Director or by a resolution of the Library’s Board of Trustees.[7]

When a Security Recording must be retained past the period set by Section G of this policy, for any reason, the basis and plan for the retention must be authorized by either the Library Director or by a resolution of the Library’s Board of Trustees.

E.  FOIL Requests

Request for Security Recordings generated at a particular date and time shall be evaluated by the Library per its FOIL policy.

In keeping with the applicable laws, Security Recordings featuring Library users shall not be made available in response to FOIL requests.[8]

F.  Warrants, Subpoenas, Litigation Hold

Requests to disclose copies of or to retain Security Recordings per a warrant, duly issued subpoena, or "litigation hold"[9] demand will be evaluated by the Library Director or designee with advice of legal counsel as needed.

G. Retention & Data Security

The Library retains Security Recordings for [period decided by Library], unless a specific segment is required to be retained for operational purposes, in which case, such segment is retained for three (3) years as required by the Retention and Disposition Schedule for New York Local Government Records.

The Library may also identify certain footage it decides is worthy of being retained in permanent archives.

H.  Budget and Capacity

The board shall no less than annually review of the budget and operational capacity needed to assure that the retention, disposal, and security of Security Recordings may remain as required by this policy.[10]

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.

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

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

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

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

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

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

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

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

Here is a sample:

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

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

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

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

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

AYE:

NAY:

ABSTAIN:

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

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

[NOTE: For exciting recent commentary and a model policy about fund-raising along with or on behalf of third parties (like Friends), check out this RAQ, addressing libraries assisting Friends groups with fund-raising activities.  The following response is limited to the very narrow issue of collecting donations on behalf of other (non-Friend) organization, as described in the question.]

You see them everywhere (although perhaps not as much as you used to): donation boxes for charities at the front desks of various institutions.  They can pertain to just about any worthy cause:

• Medical research
• A local preservation movement
• A fund-raiser for a specific person in need
• Trees, bees, flowers, pollinators
• Clothing

In the question, it's a Lion's Club eyeglass donation box, and, apparently, a cause that uses old sneakers.[1]

Whether it's money or tangible goods, a public library is (in the minds of charitable organizers everywhere) a great place to put out a collecting box and ask for donations.

The issue is, as pointed out by the member, that it can be both inconvenient[2], and pose risk and legal compliance challenges.

Although the legal compliance challenges the member points out are primarily fiscal (relating to state and federal conditions and restrictions for charitable fund-raising), they are also related to access and fairness--since agreeing to host a donation box for one entity means the library has to have a fair and equally applied standard before rejecting the donation box of another.[3]

These compliance challenges have their roots in the following legal factors:

• As pointed out by the member, state laws pertaining to solicitation of donations[4];
• Fiscal liability when resources intended for a third party are collected and stored on site at a library;
• Random risks potentially created by accepting donations of money and tangible goods (theft, contamination, litter, fire).

A library facing this issue has three options:

Option 1.  As a matter of policy, to not host donation boxes for third parties;

Option 2.  As a matter of policy, to use an application process and set criteria for hosting a limited number of solicitations (or perhaps just one) at any given time;

Option 3.  As a matter of policy, to use an application process and set criteria for hosting an unlimited number of solicitations at any given time.

If a Library uses "Option 1", they have very little to worry about--no financial liability, no fraud to stop, and no risk of inconvenient donations cluttering up the library.  Sure, it's sort of the "Grumpy"[5] option, but it also means resources can be focused on the main mission of the library (which is 100% A-OK).

If a Library uses "Option 2" or "Option 3", as the member points out, there needs to be a mechanism to filter out potentially fraudulent solicitations (solicitation for the non-existent "Human Fund"[6]), and to ensure the library can impose reasonable limits on how long the donation box or solicitation is present.  The best way to do this--although it will cull out certain ad hoc efforts, like money to go directly to a family impacted by a fire[7]--is to ensure the solicitation will only be by a charity registered in NY.[8]

Please find template policies addressing these options, below:

Option 1 ("Grumpy")

NO DONATION BOXES; [NO] DONATION SOLICITATIONS

1.  Donation Boxes

The NAME Library respects all charitable endeavors, including the ongoing or special solicitation of donations in support of worthy causes.  However, since the Library does not have the capacity to monitor on-site donation boxes, we cannot allow them on Library premises. 

2. Donation Solicitations

Solicitations and notices about fund-raisers can be posted on our community notice board at [location]. OR We do not currently have a location for the public to post solicitations and notices about fund-raisers.

Option 2 ("Very Limited")

DONATION BOXES; [NO] DONATION SOLICITATIONS

1. Donation Boxes

The NAME Library respects all charitable endeavors, including the ongoing or special solicitation of donations in support of worthy causes.  However, since the Library has only limited capacity to monitor on-site donation boxes, we can only allow limited amounts on Library premises.

Charities registered with the NY Attorney General's Charities Bureau may apply to have a solicitation box at the library for up to 2 months per year; selection will be made in order of application.

To apply, please send a letter letting us know:

1. The name of the charity and New York State Charities Bureau Registration #

2. The purpose of the donation

3. What is being solicited (money or donated goods)

4. The size of your donation box (cannot exceed AMOUNT)

5. Who from your organization will be at the library no less then 1 day per week to empty the donation box.

6. A complete list of board members and contact information for your charitable organization.

Failure to empty the donation box on a weekly basis will result in permission being revoked. The Library is not responsible for loss or damage to donated items.

Electronics and any items containing batteries, food, and items that may interfere with the routine environment of the library may not be donated.

Use of this is limited to # months per year, per organization.

The library may cease offering this courtesy without notice.

2. Donation Solicitations

Solicitations and notices about fund-raisers can be posted on our community notice board at [location]. OR We do not currently have a location for the public to post solicitations and notices about fund-raisers.

Option 3 ("Many at Once")

DONATION BOXES; DONATION SOLICITATIONS

1. Donation Boxes

The NAME Library is able to offer space for soliciting donation to local charities registered with the New York State Attorney General's Charities Bureau. To apply, please send a letter letting using know:

1. The name of the charity and New York State Charities Bureau Registration #

2. The purpose of the donation

3. What is being solicited (money or donated goods)

4. The side of your donation box (cannot exceed AMOUNT)

5. Who from your organization will be at the library no less then 1 day per week to empty the donation box.

6. A complete list of board members and contact information for your charitable organization.

Failure to empty the donation box on a weekly basis will result in permission being revoked. The Library is not responsible for loss or damage to donated items.

Electronics and any items containing batteries, food, and items that may interfere with the routine environment of the library may not be donated.

Use of this courtesy is limited to # months per year, per organization. The library may cease offering this courtesy without notice.

2. Donation Solicitations

Solicitations and notices about fund-raisers can be posted on our community notice board at [location]. OR We do not currently have a location for the public to post solicitations and notices about fund-raisers.

As with any model or template policy, the above language should be reviewed by your local attorney and contrasted with your other fiscal and operational policies to ensure it is consistent and reflects the priorities and practices of your unique institution.

I wish you well with helping charities accept donations, of any type or size!

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

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

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

Here are the brief answers:

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

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

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

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

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

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

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

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

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

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

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

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

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

Final tips:

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

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

 

[NAME OF MUNICIPALITY] Library Trustee Candidate Service Readiness Checklist

 

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

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

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

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

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

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

1.  Name of potential nominee:

2.  Address:

3.  Are you at least 18 years old?

            YES    NO

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

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

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

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

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

                        YES    NO

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

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

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

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

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

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

            YES    NO

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

SIGNATURE OF POTENTIAL NOMINEE :___________________

RECEIVED BY LIBRARY ON :___________________________

CONFLICT OF INTEREST FORM RECEIVED BY SECRETARY ON ____________

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

New York's Freedom of Information Law, or “FOIL”, applies to government agencies (including public libraries) but cannot be used to compel private companies (or individuals) to allow inspection or copying or records.

So, in the scenario described by the member, the private company employing the guard is not subject to FOIL, but the library is, as is the county, so information about the security company can be accessed.

Of course, that doesn't mean a person gets everything they might want, but it does mean that information about private companies working for public entities can be accessed.

We'll talk about this in more detail, but to illustrate my point, here is a short, one-act play:

CITIZEN (to security guard at public library): Who are you?!?! The Power of FOIL compels you!

SECURITY GUARD: Well, as you can see on my ID, my name is Phil. But I am not subject to FOIL.  Ask my boss.

CITIZEN (to Phil's private employer, whose company name and logo are on the ID): Who is that guy "Phil"?!? What's his last name and his qualifications?!? What does he get paid a year?!? The Power of FOIL compels you!

PRIVATE SECURITY COMPANY:  We're so glad you like Phil! We do, too. Unfortunately, we are not subject to FOIL, and we don't provide information about private employee to third parties.

CITIZEN (to the library): Your private security company is hiding information! Tell me everything about Phil! EVERYTHING!!! The Power of FOIL compels you!

LIBRARY (answering within 5 days): Your request is a bit broad, but we do have records relating to how we arranged the services of a security company through the County. Would you like to inspect those records, or be provided with copies?

CITIZEN (to the county): I don't just want to know "the arrangement," I want to know about Phil, the actual guy providing security at the Library!  Give me all the information you have on him!!! The Power of FOIL compels you!

COUNTY (replying within 5 days, and helping to narrow down the request): We are not quite sure what you're asking for, but we can definitely provide information about the security company. Do you want just the contract, or the complete procurement process, including their proposal?

[End Scene]

Of course, in this (hopefully fictional) scenario, the citizen asking for the information might not be able to get (such as what "Phil" is making per hour, or Phil's address, or Phil's resume). But if the information the person is really hoping to access falls into the accessible materials held by an entity subject to FOIL (like a county or a public library), they will hopefully get what they need.

Unfortunately, we live in a world where many times requests under FOIL can be perceived as aggressive. And sometimes the FOIL request is clearly being made by a person with an axe to grind.[1]

That's one of the many prices, to be cheerfully paid, of living in a democracy. Good government thrives on transparency, and prompt disclosures show respect for the public, as well as competence.

In my experience, the best way for an entity subject to FOIL to de-escalate any hostility accompanying a FOIL request is to:

• Always require that employees be treated with respect;
• Have a clearly articulated and easily located FOIL policy;
• Have clarity within the organization as to who is responsible for requests and appeals under FOIL[2];
• Maintain records in such a way that FOIL requests are easy and economical to fulfill;
• Allocate time and budget to train the person responsible for responding to FOIL request, so they know what to do (and when to consult a lawyer).

All of the above-listed bullets can be achieved through a policy that sets out the proper timelines and procedures for following the law.

The great thing about a FOIL request being submitted to a library is that if there is one thing librarians know how to do, it's how to help people find information. So, unlike other "agencies" subject to FOIL, where records management and disclosure can be perceived as a hassle, in some ways, fulfilling a FOIL request is just business as usual: enable access.

The below "Template Public Library FOIL Policy" is based on the model policy supplied by the New York State Committee on Open Government (the COOG), found at https://opengovernment.ny.gov/freedom-information-law.  Since it is right from the COOG (with a few added bells and whistles from me), it checks all the boxes on mandatory reply times, providing copies, and how to reply to a request.

Having a policy, and a posting a summary setting out how to request a library record under FOIL, is a good way to diffuse any tension underlying a FOIL request.

As with any template, before a public library's board passes a version based on this one, it is best to have it reviewed by your library's lawyer.

 

NAME Public Library FOIL Compliance Policy	Date adopted: INSERT
To be posted at: INSERT	Position primarily responsible for coordinating compliance: INSERT
Records Access Officer: INSERT   FOIL Appeal Officer: INSERT   Position Responsible for annual check of Subject Matter list: INSERT	Review annual at the MONTH meeting by the Trustees to ensure familiarity, compliance, and budget support.
Appendix: Model FOIL Notice for posting	Related policies: Record Retention Policy

 

Section 1: Purpose and scope of this FOIL Compliance Policy:

The NAME Library (the "Library") believes in the right of the People to know the process of decision-making and to have access to the documents and information underlying the operations of the Library.  

In addition, a part of the mission of the Library is to enable access to information the public is entitled to.

To that end, the Library shall furnish to the public the information and records required by the Freedom of Information Law, using this policy to enable, effect, and document such compliance.

Section 2: Designation of Library Records Access Officer:

1. The Library designates the following person(s) as "Records Access Officer(s)":

Job title or name:  _____________________________________________

Business address: _____________________________________________

Email address: ________________________________________________

2. The Records Access Officer is responsible for ensuring appropriate library response to public requests for access to records, and shall ensure that the Library:
   1. Maintains an up-to-date subject matter list of type of Library records, based on the categories of documents in the LGS-1[3].
   2. Assist persons seeking public library records to identify the records sought, if necessary, and when appropriate, indicate the manner in which the records are filed, retrieved or generated to assist persons in reasonably describing records.
   3. Contact persons seeking records when a request is voluminous or when locating the records involves substantial effort, so that personnel may ascertain the nature of records of primary interest and attempt to reasonably reduce the volume of records requested.
   4. Upon locating the records, take one of the following actions:
      1. Make records available for inspection; OR,
      2. Deny access to the records in whole or in part and explain in writing the reasons therefor.
   5. Upon request for copies of records:
   1. Make a copy available upon payment or offer to pay established fees, if any, in accordance with Section 8 of this Policy; OR,
   2. Permit the requester to copy those records under appropriate supervision to ensure the records' physical integrity.
   3. Upon request, certify that a record is a true copy; and
   1. The NAME Library is not the custodian for such records; OR,
   2. The records of which NAME Library is a custodian cannot be found after diligent search.
   3. Upon failure to locate records, certify that;

Section 3: Location

Records shall be available for public inspection and copying at:

(Location)____________________________________

(Address)____________________________________

____________________________________________

____________________________________________

____________________________________________

Section 4: Hours for public inspection:

Requests for public access to records shall be accepted and records produced during all hours the Library is regularly open for business, however, timing of fulfillment will be impacted by staff capacity.

Section 5: Requests for public access to records

1. A written request may be required, but oral requests may be accepted when records are readily available.
2. If records are maintained on the internet, the requester shall be informed that the records are accessible via the internet and in printed form either on paper or other information storage medium.
3. A response shall be given within five business days of receipt of a request by:
   1. informing a person requesting records that the request or portion of the request does not reasonably describe the records sought, including direction, to the extent possible, that would enable that person to request records reasonably described; OR,
   2. granting or denying access to records in whole or in part; OR,
   3. acknowledging the receipt of a request in writing, including an approximate date when the request will be granted or denied in whole or in part, which shall be reasonable under the circumstances of the request and shall not be more than twenty business days after the date of the acknowledgment, or if it is known that circumstances prevent disclosure within twenty business days from the date of such acknowledgment, providing a statement in writing indicating the reason for inability to grant the request within that time and a date certain, within a reasonable period under the circumstances of the request, when the request will be granted in whole or in part; OR,
   4. if the receipt of request was acknowledged in writing and included an approximate date when the request would be granted in whole or in part within twenty business days of such acknowledgment, but circumstances prevent disclosure within that time, providing a statement in writing within twenty business days of such acknowledgment specifying the reason for the inability to do so and a date certain, within a reasonable period under the circumstances of the request, when the request will be granted in whole or in part.
4. In determining a reasonable time for granting or denying a request under the circumstances of a request, the Library shall consider the volume of a request, the ease or difficulty in locating, retrieving or generating records, the complexity of the request, the need to review records to determine the extent to which they must be disclosed, the number of requests received by the agency, and similar factors that bear on the ability to grant access to records promptly and within a reasonable time.
5. A failure to comply with the time limitations described herein shall constitute a denial of a request that may be appealed. Such failure shall include situations in which the Records Access Officer (or other employee):
1. fails to grant access to the records sought, deny access in writing or acknowledge the receipt of a request within five business days of the receipt of a request; OR,
2. acknowledges the receipt of a request within five business days but fails to furnish an approximate date when the request will be granted or denied in whole or in part; OR,
3. furnishes an acknowledgment of the receipt of a request within five business days with an approximate date for granting or denying access in whole or in part that is unreasonable under the circumstances of the request; OR,
4. fails to respond to a request within a reasonable time after the approximate date given or within twenty business days after the date of the acknowledgment of the receipt of a request; OR,
5. determines to grant a request in whole or in part within twenty business days of the acknowledgment of the receipt of a request, but fails to do so, unless the agency provides the reason for its inability to do so in writing and a date certain within which the request will be granted in whole or in part; OR,
6. does not grant a request in whole or in part within twenty business days of the acknowledgment of the receipt of a request and fails to provide the reason in writing explaining the inability to do so and a date certain by which the request will be granted in whole or in part; OR,
7. responds to a request, stating that more than twenty business days is needed to grant or deny the request in whole or in part and provides a date certain within which that will be accomplished, but such date is unreasonable under the circumstances of the request.

Section 6: Subject matter list

1. The Library shall maintain a reasonably detailed current list by subject matter of all records in its possession, based on the categories of records set forth in the LGS-1, whether or not records are available pursuant to subdivision two of Section eighty-seven of the Public Officers Law.
2. The "Subject Matter List shall be sufficiently detailed to permit identification of the category of the record sought; the LGS-1 breakdown and description of record categories is the default system the Library shall use.  Whenever possible, this Subject Matter List shall accord with the categories in the Library's [Document Retention and Destruction Policy OR equivalent].
3. The Subject Matter List shall be updated annually by POSITION. The most recent update shall appear on the first page of the subject matter list.

Section 7: Denial of access to records

1. Denial of access to records shall be in writing stating the reason therefor and advising the requester of the right to appeal to the individual or body established to determine appeals, [who or which] shall be identified by name, title, business address and business phone number.
2. If requested records are not provided promptly, as required in Section 5 of this policy, such failure shall also be deemed a denial of access.
3. The following "FOIL Appeal Officer" shall determine appeals regarding denial of access to records under the Freedom of Information Law:
   Name: ___________________________________________________

Title or position: ____________________________________________

Address for FOIL purposes:___________________________________

_________________________________________________________

Phone number:____________________________________________
 

4. Any person denied access to records may appeal within thirty days of a denial.
5. The time for deciding an appeal by the individual or body designated to determine appeals shall commence upon receipt of a written appeal identifying:
   1. the date and location of requests for records;
   2. a description, to the extent possible, of the records that were denied; and
   3. the name and return address of the person denied access.
6. A failure to determine an appeal within ten business days of its receipt by granting access to the records sought or fully explaining the reasons for further denial in writing shall constitute a denial of the appeal.
1. The person or body designated to determine appeals shall transmit to the Committee on Open Government copies of all appeals upon receipt of appeals. Such copies shall be addressed to:
   
   Committee on Open Government
   Department of State
   One Commerce Plaza
   99 Washington Avenue, Suite 650
   Albany, NY 12231
    
2. The person or body designated to determine appeals shall inform the appellant and the Committee on Open Government of its determination in writing within ten business days of receipt of an appeal. The determination shall be transmitted to the Committee on Open Government in the same manner as set forth subdivision (f) of this section.

Section 8: Fees

1. There shall be no fee charged for:
   1. inspection of records;
   2. search for records; or
   3. any certification pursuant to this part.
2. Copies may be provided without charging a fee.
3. Fees for copies may be charged, provided that:
1. the fee for copying records shall not exceed 25 cents per page for photocopies not exceeding 9 by 14 inches. This section shall not be construed to mandate the raising of fees where agencies or municipalities in the past have charged less that 25 cents for such copies;
2. the fee for photocopies of records in excess of 9 x 14 inches shall not exceed the actual cost of reproduction; or
3. an agency has the authority to redact portions of a paper record and does so prior to disclosure of the record by making a photocopy from which the proper redactions are made.
1. an amount equal to the hourly salary attributed to the lowest paid employee who has the necessary skill required to prepare a copy of the requested record, but only when more than two hours of the employee’s time is necessary to do so; and
2. the actual cost of the storage devices or media provided to the person making the request in complying with such request; or
3. the actual cost to the agency of engaging an outside professional service to prepare a copy of a record, but only when an agency’s information technology equipment is inadequate to prepare a copy, and if such service is used to prepare the copy.
4. The fee an agency may charge for a copy of any other record is based on the actual cost of reproduction and may include only the following:
5. When the Library has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, or when doing so requires less employee time than engaging in manual retrieval or redactions from non-electronic records, the Library shall retrieve or extract such record or data electronically. In such case, the Library may charge a fee in accordance with Section 8.3 above.
6. The Library shall inform a person requesting a record of the estimated cost of preparing a copy of the record if more than two hours of an agency employee’s time is needed, or if it is necessary to retain an outside professional service to prepare a copy of the record.
7. The Library may require that the fee for copying or reproducing a record be paid in advance of the preparation of such copy.

Section 9: Public notice

A notice containing:

• the title or name and business address of the Library Records Access Officer
• the title or name and business address of the Library's FOIL Appeal Officer
• the location where records can be seen or copied

shall be posted in a conspicuous location in the Library, and on the Library website at ADDRESS.

Section 10: Severability

If any provision of these regulations or the application thereof to any person or circumstances is adjudged invalid by a court of competent jurisdiction, such judgment shall not affect or impair the validity of the other provisions of these regulations or the application thereof to other persons and circumstances.

 

NAME Public Library FOIL Compliance Public Notice	Date adopted: INSERT
To be posted at: INSERT	Position primarily responsible for coordinating compliance: INSERT
Records Access Officer: INSERT   FOIL Appeal Officer: INSERT   Position Responsible for annual check of Subject Matter list: INSERT	Review annual at the MONTH meeting by the Trustees to ensure familiarity, compliance, and budget support.
Appendix: Model FOIL Notice for posting	Related policies: Record Retention Policy

 

YOU HAVE A RIGHT TO SEE YOUR LIBRARY'S PUBLIC RECORDS

The amended Freedom of Information Law ("FOIL"), which took effect on January 1, 1978, gives you the right of access to many public records, including many of those related to the operation of your public library.

Records related to the Library, if not considered exempt from FOIL, can be seen and copied at:

(Location)____________________________________

(Address)____________________________________

____________________________________________

____________________________________________

____________________________________________

 

The following Library employee(s) will help you to exercise your right to access:

Library Records Access Officer(s)

(name)_____________________________________________

(job title)____________________________________________

(business address)_____________________________________

____________________________________________________

(phone #)____________________________________________

 

If you are denied access to a record, you may appeal to the following person(s) or body:

(name)_____________________________________________

(job title)____________________________________________

(business address)_____________________________________

____________________________________________________

(phone #)____________________________________________

 

 

---

[1] I personally have ground down at least three metaphorical axes, making FOIL requests over the years.

[2] These will be different people/groups.

[3] LGS-1 is the NYS Archives Retention and Disposition Schedule for New York Local Government Records and can be found at: http://www.archives.nysed.gov/records/local-government-record-schedule/lgs-1-title-page

Several considerations impact the answer to this question:

For a public library, the bare minimum record retention periods are found in a document called "the LGS-1."[1]  The LGS-1 has rules for retention covering everything from your library's charter, to how long you hold onto circulation records.

For an association library, which does not have to follow the LGS-1, those retention rules in the LGS-1 are a good baseline, but you have a bit more latitude.

However, no matter what baseline a library or other cultural organization chooses to adopt, it is good to keep in mind that required retention periods are routinely extended by things like:

• Insurance policy requirements
• Union contracts (for personnel records)
• Grants, and other sponsored funding
• Lawyers instructing a client to retain records as part of a "litigation hold"

In addition, while it can't be considered a formal "retention period", documents are also "retained" by institutions simply due to a tendency to hoard records.  At times, this can be a healthy tendency (like when letters from a first grade class from 1945, written to thank the local library for a story hour, are found in moisture-resistant storage, and they are turned into an exhibit).  Other times, it is not so healthy (like when borrower records from 5 years prior[2] are accessed during a burglary or hack).

For a large library (or museum, or other cultural institution) with robust funding and a large staff, "records management" per the LGS-1 or a customized "record retention policy" is often part of a person’s (or department's) job description--and is supported in the annual budget.  For a smaller library (or museum, or other cultural institution) with less-than-robust funding, and a smaller staff, "records management" is often an afterthought.  This can cause complications when the records pile up, and there is no person--or budget--to sort through them and make sure they are properly retained/purged.

But this question is about retention periods, not the drama they can cause!  So here is the answer:

For the types of records mentioned in the question ("employee records, payroll records, sales and purchase records, mortgage and loan documents"), the retention periods vary; some are "permanent", and others are as short at 6 years.  The LGS-1 (which will pop up when you search "LGS-1") will give you the breakdown.

For an association library that doesn't want to follow the precise requirements of the LGS-1, but still wants a retention policy, below is a model policy.

Thank you for submitting an important question!

 

[ABC] ASSOCIATION LIBRARY

RECORD RETENTION AND DISPOSAL POLICY

Items in yellow are to be changed or removed

Policy

The ABC Library retains and disposes of records as required by law, contracts, and based on the board's determination of what is in the operational best interests of the Library.

I.        Records are retained as follows:

-Association Library Charter, bylaws, Plan(s) of Service, Annual Reports: PERMANENT

-All records made available per the Open Meetings Law: PERMANENT

-Deeds: PERMANENT

-Contracts: (includes leases, mortgages, loan documents, vendor contracts, employee benefit contracts, warrantees, use of independent contractors): Seven years after termination of all obligations and rights created by contract; in some cases, PERMANENT. See "Archives."

-Employee-related: Seven years after termination of employee.  See "Archives."

NOTE: This will be impacted by an association library's union contracts, employee manual provisions, and employee-related policies; check these documents to ensure consistency.

-Fiscal & Financial: Seven years, unless the relevant fiscal policy, document or transaction it is related to requires longer. See "Archives."

-Archives: PERMANENT

-Records pertaining to library operations (based on the LGS-1 to ensure consistency with non-association libraries in the XYZ Library System):

-Accession records: 1 year after accessioning procedure becomes obsolete

NOTE: Some libraries accession manuscripts, rare books and special collections, but not their general library holdings. In these cases, the accession records need to be retained only for the kinds of materials still accessioned.

 -Informational copies of records prepared by and received from public library system, including but not limited to directories, minutes, budgets and reports: 0 after superseded or obsolete

-Directory of public library system and member libraries, prepared by public library system (member library's copy): 0 after superseded or obsolete

-Library card application records: 3 years after card expires or is inactive

-Borrowing or loaning records: 0 after no longer needed

-Interlibrary loan records, including requests to borrow or copy materials from other libraries, receipts for materials, copy logs, accounting records, and circulation records

a) When no copies of original materials are requested: 0 after no longer needed

b) When copies of original materials are requested: 5 years after order is completed

-Catalog of holdings

a) Manuscript or published catalog: PERMANENT

b) Continuously updated catalog: 0 after superseded or obsolete

-Individual title purchase requisition which has been filled or found to be unfillable: 1 year

-Records documenting selection of books and other library materials:

0 after no longer needed

-Library material censorship and complaint records, including evaluations by staff, patrons' complaints and record of final decision: 6 years after last entry NOTE: Appraise these records for historical significance prior to disposition. Some library censorship records deal with serious constitutional issues and may have value for future research.

-Patron's registration for use of rare, valuable or restricted non-circulating materials: 6 years

-Program and exhibit file documenting planning and implementation of programs, services and exhibits sponsored or co-sponsored by the library, including but not limited to photographs, sketches, worksheets, publicity, brochures, exhibit catalogs, inventory lists, loan agreements, correspondence, attendance sheets or registration forms, and parental consent forms:

a) Parental consent records: 6 years, or 3 years after child attains age 18, whichever is longer

NOTE: Photo release records are covered under item no. 68 in General Administration section. Local Government Schedule (LGS-1) Library/Library System

b) Attendance sheets and registration forms, when no fee is charged: 0 after no longer needed

c) All other records: 6 years after exhibit closed or program ended

NOTE: Appraise these records for historical significance or value for collections documentation prior to disposition. Some of these records may have continuing value for historical or other research and should be retained permanently. Contact the State Archives for additional advice

II.       Records are disposed of as follows:

At the end of the retention period, physical copies are purged via shredding as their retention period expires.[3]

At the end of the retention period, electronic records are routinely disposed of by [insert input from your IT professional].

Archives

Prior to purging, all records of the Library are appraised for historical significance or value for collections documentation prior to disposition. Some of these records may have continuing value for historical or other research and should be retained permanently. Records retained permanently due to historic or research value are designated as "Archives."

 

 

---

[1] For more "Ask the Lawyer" on the LGS-1, see Board of Trustees Notes Retention. The 2022 version of the LGS-1 was, as of April 11, 2022, found here: http://www.archives.nysed.gov/common/archives/files/lgs-1-2022.pdf.

[2] I know library systems are very good about ensuring borrower records are purged from ILS once they are no longer needed, as authorized by the LGS-1.  This is just an extreme example to make my point.

[3] For more information on appropriate ways to dispose of physical copies, visit http://www.archives.nysed.gov/common/archives/files/mr_pub41.pdf.

These meeting-room related submissions to "Ask the Lawyer" were inspired by two separate resources: the first one, an "Ask the Lawyer" RAQ on meeting room policies, and the second, an ESLN-sponsored training.

If you've read the questions, you know they will not have the same answer.  So, as recent viewers of the new Spider-Man movie may have asked,[1] why the mash-up?

Because the answers share the same foundation: the rules around community access to space.

The first question is based on a concern we addressed in the RAQ on meeting room policies.  Here is the part that inspired the question:

"No, there is no legal requirement for public libraries to limit access to space to non-profit organizations.

However, there IS a requirement for any "charitable" entity[7] in New York to not allow any of its assets to “inure” to any one individual, while non-association libraries have to follow an even stricter rule against "aid" to individual people or businesses as set by the NY Constitution (this is why a town library can't use funds to throw a big "bon voyage" party to celebrate a retiring employee, but its not-for-profit "Friends" can)."

The second question is asking for model language, within the framework of what is allowed, to protect the rights of those using the rooms.

So, like a webslinger arcing majestically from issue to issue, let's do this.

The First Question

Is a person using free resources at the library for personal gain violating the law against "inurements"?  Most likely: no.

The resources at public libraries can often serve as the first, critical building blocks of a small business.  A person wanting to research an idea, create a 3-D printing of a product prototype, select neutral ground to meet a potential investor, or offer compensated services (such as tutoring) can often find what they need--for free--at the library.

The dawn of the co-working space might be changing this for people who can afford to rent space in a co-working facility that will supply desk space, internet, and even a mailing address.  But for fledging entrepreneurs on a budget, the free resources and information provided by libraries can be essential.

And why doesn't such use of library resources for a business/personal gain risk tripping the bar on "inurements"?

Because the resource is available to the community equally, per library policy.  In the member's scenario, the library is providing first-come, first-served space suitable for, among other things: group work, a political discussion, or tutoring (with or without compensation).  The library is providing a place for people to sit and talk, so long as they arrive in time to gain access to a finite resource.

Once people are availing themselves of library services, a library can't set further rules about the relationship between the parties; so long as their interaction remains within library policy (not disruptive, not in excess of established time limits, etc.). In other words, the relationship between the parties, or an activity that fits within authorized use, can't change the otherwise compliant use of the library space.

Where the member's scenario could get out of hand would be if:

• The tutor starts advertising for services and uses the library as a business address;
• The tutor starts "camping" (holding the space past established limits) in violation of the policy;
• The tutor is an employee or independent contractor whose company specifically requires offering the services in the library;
• The library has a policy against any compensated activity, whatsoever, being conducted on site.[2]

In each of the above examples, the service is exceeding the use generally available to any person using the library.  This is where the "inurement" can begin, and the use of public library resources for unambiguously private gain would begin.  But so long as no one is claiming or actually using the resource in excess of what is generally allowed, there is no issue.

The Second Question

Now that we've reviewed that "what applies to one must apply to all," we can turn to the other question: how can a library designate space used per policy and by reservation as "private," to avoid meeting crashers?[3]

Below this answer is listed a myriad of resources from the ALA[4] on this topic.  I urge readers to review these, as each one sets out important considerations on the use of library space.  But for now, we're dealing with this single, incremental question in the State of New York.

Once a library policy sets the terms of community access to private meeting space, here is language for signage at the entrance to the meeting space:

When reserved, this space is for designated users only.  To reserve this space, or to obtain a copy of the rules and contract for reservation, please visit [INSERT] or [INSERT].

A library can make this posted language as friendly ("This room is only for reserved events, and is private when in use.  Visit our circulation desk for more information!) or imposing ("Reserved, please do not enter without permission.") as it likes. The important thing is that the rules and terms of use are consistent with the law,[5] clearly established by a board-approved policy, and uniformly applied.

And there we go!

Thanks to both members for their insightful questions.

Additional Resources

For those of you who wanting more at the intersection of law, libraries, and meeting rooms, paralegal Klara in the LOSA[6] assembled this list of resources from ALA:

1. Meeting Rooms: An Interpretation of the Library Bill of Rights

- overview on library meeting rooms, suggestions for policies

2. Meeting Rooms Q&A

- includes standard definitions for terms included in policies

- lists what meeting room policies should cover

3. Guidelines for the Development of Policies and Procedures Regarding User Behavior and Library Usage

4. The Library's Legal Answers for Meeting Rooms and Displays

- an ALA eBook by Mary Minow, Tomas Lipinski, Gretchen McCord

- limited public forum vs. designated public forum vs. nonpublic forum

- lists legal cases relevant to library meeting rooms and exhibit spaces

5. OIF Blog - Library Meeting Rooms for All, by James LaRue (former director of the ALA Office for Intellectual Freedom)

 

 

---

[1] The answer to the Spider-Man part of this is of course obvious: because it’s a witty convergence of web-slingers.  Of course, as a Gen X nerd (b. 1973), I was a target demographic.  Well played, Marvel.

[2] Such a policy would be far too overbroad. If a paid babysitter takes the kids to the library regularly, would that be a violation?  If an accountant uses a library computer to check the tax code, would that be a violation?  If a professional writer uses the reading room every day to write/think/draft, would that be a violation?  That said, a policy against the sale or distribution of material items makes sense.

[3] Including those identifying as "First Amendment auditors"...a term I am loath to use.  I am a huge fan of the First Amendment, but those claiming to “audit” for it often demonstrate a less-than-fully developed familiarity with the Constitution. To me, people trying to film in a library while asking questions about budget, etc. are just "people who want to record in the library," and they warrant the same respect, and must follow the same rules, as other people who may want to record in the library.

[4] ALA is the national go-to for information on library matters, and we try not to replicate materials already available.  At "Ask the Lawyer" we deal with the legal nitty-gritty in New York, only.

[5] For more on that, see that meeting room RAQ HERE

[6] "LOSA" = The Law Office of Stephanie Adams, PLLC.

This is a VERY sensitive issue. There are many factors that could contribute to a person sleeping in a public space, including:

• An undiagnosed medical condition
• A diagnosed medical condition
• Non-medical factors impacting behaviors
• Temporary or serial lack of a safe, stable place to rest
• Simply wanting to take a nap[1]
• Any combination of the above-listed factors

Each one of these brings their own array of legal (and ethical, and moral) considerations.

But before we get into all that, let's discuss: for purposes of this question, what is "sleep"?

For purposes of this question, let's call "sleep" a "state of healthy, restful, and restorative unconsciousness."  In other words, "sleep" is that great thing we all do when our eyes get heavy, we yawn, and lie down, dozing into blissful unawareness.

Sleep: we all do it, and many of us love it.[2]

Now, let's talk about what sleep isn't for purpose of this question.  "Sleep" isn't, for purposes of this question; the result  of a concussion, a seizure, a stroke, an opioid overdose, or dangerously low blood sugar.   And yet, to the untrained eye, any one of these dangerous conditions could be mistaken for "sleep."[3]

Because of this, no matter how much my bleeding heart and sense compassion want to say, "Just let the person sleep in the library, and don't say anything," I can't.  I just can't bring myself to normalize ignoring what could be "sleep" one day, and a diabetic coma the next.[4]

That said, because it could be related to a real or perceived medical condition and/or disability, denying or restricting library services (including the right to simply be present in the library) on the basis of simply falling asleep could pose risks of disability discrimination.  Sleep happens, folks, and sometimes people can't help it.

So, what is the solution, here?

Well, as with many things, there is no one "right" answer.  But I will say:

1.  Every library should have a policy, or at least a "standard operating procedure" (or "SOP"), regarding "Suspected or Actual Medical Events in The Library."   That policy should address (among other things) what to do about perceived loss of consciousness or coherence by library users.[5]

2.  A" Suspected or Actual Medical Events in the Library" policy or SOP can also address incidental (meaning unintended) and deliberate use of the library for napping.
3.  This is where a library's discretion and autonomy kick in.

A library can decide if it is going to normalize sleeping in the library, or not.

If a library decides NOT to normalize sleep in the library, a simple statement such as "For assurance of safety, the library is a no-nap, no-sleep zone.  Thank you for helping us maintain this rule.  We understand that sleep happens; if you need to request ADA accommodations due to this rule, please contact NAME at INFO."   Then, as a rule, patrons who fall asleep should be awoken (just as patrons who bring food in might be asked to remove it, or patrons who don't wear shoes might be asked to put some on).

On the flip side, if a library decides, as a matter of policy, to allow users to sleep in the library[6], such a policy can also create the protocol for "safe napping," with those planning to sleep notifying staff, so the nap is not mistaken for an overdose, seizure, etc.

NOTE: Before selecting this option, a library should check with its general liability insurance carrier to make sure it is consistent with the library's risk threshold and coverage.

What does a "Suspected or Actual Medical Events in the Library" with a "sleeping" section look like?  Here is an example (with both a "sleep okay" and "no sleep" option at the end):

The XYZ Community Library is a welcoming, service-oriented, and inclusive space for all. To promote the health and safety of those using our library, the following possible medical events will result in the staff calling 911:

• Any perceived or actual loss of sustained coherence or consciousness;
• Any library user exhibiting signs that they may require emergency medical attention,

who does not expressly instruct staff that immediate medical attention is not required;

• Any person requesting emergency medical response.

Definitions

For this policy, "loss of sustained coherence or consciousness" is the inability to communicate meaningfully with library employees in the user's primary language.

For this policy, express instructions to staff that "immediate medical attention is not required" may be disregarded at the considered discretion of the library employees; such a decision will be based on consideration of: the specific facts of the situation, respect for the agency of the user, and respect for the mission and operational needs of the library.

ADA

If a library user has a medical condition that can potentially result in perceived or actual loss of coherence or consciousness, you may use the library's ADA Accommodations policy to arrange reasonable accommodations so your library experience is not unnecessarily impacted by this policy. For example, if a library user has narcolepsy and wishes to be woken in the event, they fall asleep, the library can consider a reasonable accommodation such as allowing the user to use a specific type of alarm in an otherwise quiet space.

Specific Situations

Whenever possible, the library uses the following specific guidelines from the CDC with respect to common medical events that can impact coherence or consciousness:

Seizures

Seizures do not usually require emergency medical attention. Only call 911 if one or more of these are true:

• The person has never had a seizure before;
• The person has difficulty breathing or waking after the seizure;
• The seizure lasts longer than 5 minutes;
• The person has another seizure soon after the first one;
• The person is hurt during the seizure;
• The seizure happens in water;
• The person has a health condition like diabetes, heart disease, or is pregnant.

Suspected opioid overdose
Call 911 if an overdose is suspected.

Recognizing an opioid overdose may be difficult. If it is unclear, treat the situation like an overdose and proceed with treatment. Even if the patient wakes up or seems better after one or two doses of naloxone, emergency medical assistance is still necessary.

Severely Low Blood Sugar

Blood sugar below 55 mg/dL is considered severely low. If any of the following happens, you should call 911:

• A person with low blood sugar passes out;
• A person with low blood sugar needs a second dose of glucagon;
• A person with low blood sugar had glucagon but are still confused;
• A person with low blood sugar stays too low 20 minutes after treatment or doesn’t respond to the usual treatments.

Concussion
Signs and symptoms of a dangerous concussion can include:

• One pupil larger than the other;
• Drowsiness or inability to wake up;
• A headache that gets worse and does not go away;
• Slurred speech, weakness, numbness, or decreased coordination;
• Repeated vomiting or nausea, convulsions or seizures (shaking or twitching);
• Unusual behavior, increased confusion, restlessness, or agitation;
• Loss of consciousness (passed out/knocked out). Even a brief loss of consciousness should be taken seriously.

Call 911.

This policy, and sleeping in the Library

CHOICE 1: USE IF THE LIBRARY DECIDES TO NOT ALLOW PEOPLE TO SLEEP IN THE LIBRARY Because loss of consciousness can be a sign of a medical emergency, library users are asked not to deliberately sleep or nap in the library.

If a library user is asleep in the library, staff are instructed to wake them.

In applying this rule, the library will follow the requirements of the ADA; if a library user has a medical condition that can cause uncontrollable sleep, at that library user's discretion, they may alert staff so accommodations can be made (see "ADA" above).

CHOICE 2: USE IF THE LIBRARY DECIDES TO ALLOW PEOPLE TO SLEEP IN THE LIBRARY

If you have a medical condition that can cause uncontrollable sleep, at your discretion, you may alert staff so accommodations can be made (see "ADA" above).

If you simply find that the library is a nice, quiet place for you to take a nap, please alert us that you "Plan to take a nap" so our staff knows that you are asleep by desire, and not experiencing a medical emergency causing loss of consciousness or coherence. We'll give you a nice arrangement of purple flowers[7] to keep near where you're sitting so staff know you're deliberately using the library space to rest and restore yourself.

Users must limit planned napping in the library to no later than one half-hour before close, so you have time to gather your thoughts and energy before it is time for us to close up the building.[8]

If your nap creates loud snoring or other disruption, we may have to wake you! Please be gracious to staff who are responsible for making sure the library is a welcoming and inclusive space for all.

As with any template, before adopting a policy based on this one, review the final version with your lawyer (and, as noted above, your library's insurance carrier).

And a final note: I truly wish I had a better answer to this question.  As I said at the beginning, this is a VERY sensitive issue.  But if a commitment to library access, safety, and mission guide the decision, your library can find the best answer for  YOUR library.

Thank you for this tough question.

 

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[1] This bullet might be more properly be phrased “Sometimes people just want to take a damn nap,” meaning that forces that get in the way of said nap are unreasonable.  I have to disagree in this case, but I get it.

[2] And if you suffer from insomnia, you may not do it enough.  I feel you, fellow lying-awake-at-2AM-person.

[3] If you are a trained medical professional qualified to diagnose of a concussion, a seizure, a stroke, an opioid overdose, or dangerously low blood sugar, this statement obviously doesn't apply to you.

[4] One of my children has Type 1 Diabetes (the kind where you can't make your own insulin, because your immune system attacked the Beta cells in your pancreas) so this issue hits close to home.

[5] When in doubt, call 911.

[6] Just in case it isn't readily apparent, I am truly neutral on whether or not to "normalize" sleeping in a library.  Truly, I can see the benefit to a decision either way; the point is to make a deliberate decision based on a commitment to access, safety, and smooth library operations.

[7] It doesn't need to be flowers (purple or otherwise), that’s just me being cute.  The point is having a signifier or system, so employees know the lack of consciousness didn't start as a medical issue.

[8] I worked on this question while sitting in my back yard on a sunny day in May. I asked my 7-year-old neighbor, Matt, who is possessed of both a wise spirit and a blunt nature, if he thought people should be able to sleep in the library.  "No," he said, after a moment’s reflection.  "They might not be seen and could get locked in for the night."  He then asked me: "You do this for your work?" Kids are the best.