Public Libraries

I remember getting my first library card at the Utica Public Library with my Dad, circa 1985.  It was a right of passage: something "official" before I could drive, or work, or vote; a stepping-stone to adult life.

Of course, back then, we didn't have the Child Online Privacy Protection Act, the SHIELD Act, or the GDPR.  We did have CPLR 4509[1], but if that was part of the application, I probably assumed it was what the library would use to revive me if I had a heart attack in the stacks.

But enough of Memory Lane: this question is rooted in 2020, a time of pandemic, of online ecosystems, and of growing awareness about personal privacy and data security.  During this time, a library putting in place direct access to services for children in the ways listed by the member is a critical service, and as the member points out, introduces a lot of legal factors to think about.

To answer the member's questions, let's dive into them.

Contracts and Kids

Since the relationship of a library to a patron is (among other things) contractual, and in New York a person (generally) cannot be held to a contract until they are 18[2], any terms a library wants to be able to enforce on a minor must require legal consent of a parent or guardian...and in some cases, the contract really is just with the parent or guardian (who I will call "P/G" for the sake of efficiency going forward).

This, by the way, doesn't mean a library can't let minors have a card and borrow books (or have online access, or be in the library) without the signature of a parent or guardian—it just means if you want to enforce any contractual terms against those minors (like the requirement to return borrowed books), it's best to have a P/G's consent along for the ride.

 

Contracts and the Internet

Most contracts—including those signed by P/Gs binding minors—can be entered into electronically,[3] and a contract signified by a library card is no exception.  So yes, a patron, including a child, can get a library card or access to services through an electronic signature. 

(Just in case you want the nation-wide definition, an "electronic signature" is "an electronic sound,[4] symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record."[5])

 

What about COPPA?

When a website specifically provides services to children, we often have to consider the Children's Online Privacy Protection Act, or "COPPA."  But not today, since COPPA expressly states that the law applies to "commercial" websites and online services and generally not to nonprofit entities like a library.[6]

Although nonprofit entities are generally not subject to COPPA, the FTC "encourages[7] such entities to post privacy policies online and to provide COPPA’s protections to their child visitors."  Since libraries are sticklers for privacy, this makes sense, but if your library does this when setting up online resources for minors, don't call it "compliance with COPPA," call it "doing it the right thing because we want to."[8]

 

Should we require a parent?

COPPA, by the way, is one of the laws that uses the age of thirteen as the cut-off age for children being able to sign up for things (commercial or otherwise) on their own.  In my experience, 13 is also the age when insurance carriers decide children transition from "vulnerable" to simply "minors."  For this reason, many content providers and services (including libraries) bar access without a parent to those under 13.

All of which is to say: while there might not be a legal requirement to involve a P/G, in general, I'd say this is a good practice.  Good—but not required.  Remember, to legally enforce any conditions[9] (collect fines), you need a P/G's signature, but if you just want to let a kid borrow a book without consequences enforceable in court, you don't.

 

Let's see some ID?

Okay: you're set with electronic signatures.  You know you need to get P/G into the mix for patrons under 18.  You're "Doing The Right Thing Because You Want To" when it comes to soliciting information from minors under 13.  Do you need to see identification to make things official?

That depends.

If the privileges the library card or access grants come with conditions you will need to enforce in a court of law (fines, damages), it is ALWAYS better to get some form of identification or proof of address.  I say this, because when lawyers sue, proper ID and proof of address is how they know they are suing the right person.

Similarly, if there is an age or residency requirement, or a financial element (for instance, loading money onto an account), or if a person is to have access to another's account, you might need to require ID. 

Because the need for it will vary, when to require ID is a good question for your local attorney.  From my perspective, if a person is allowed to take out more than $10,000.00 worth of library assets at a time, or a library wants to be able to collect fines, I'd want to know how to enforce a return of those items.  Similarly, if patrons are allowed to access services from third-party vendors through their library card (software programs, audio books, anything governed by a third-party license), and there are consequences for a violation, it is good to have solid information about who your patron really is.

The problem is, if you are going to require ID, you must have a solid policies and procedures that address:

• Requiring ID in a manner that does not disproportionately impact those who live in poverty, or other categories of people[10]
• Requesting ID
• Evaluating ID
• Securely retaining and routinely destroying hard copies of ID
• Securely retaining and routinely purging electronic copies of ID
• Have a plan for data breach impacting retained ID

Basically: the reason a library would require ID—aside from verifying that a person lives in the relevant area of service, or is who they say they are—is to collect damages or to legally enforce conditions the patron has agreed to as a condition of a card.  Since that is an unpleasant business, its best to avoid it whenever you can...but when it's important, it's important to do it right.

I enjoyed writing this answer, because as part of it, I got to poke around and see how different libraries are solving this issue.  I saw some great stuff, including a temporary e-access system that let the technology do all the work (requesting verification of age via click-thru, using location services to confirm location in NY, imposing conditions on digital content via function without the need for legal enforcement mechanisms).

It is good to see when the law inspires, rather than quashes, creativity and information access.  I hope your library and library system finds this helpful as you imagine new ways to connect people to vital services!

 

 

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[1] Requiring libraries to not release an individual's library records to a third party.

[2] There ARE some exceptions, but unless your library is hiring a minor to act in their movie, or selling a married couple of 17-year-olds a house, they shouldn't apply here (see General Obligations Law § 3-101).

[3] (15 USCS § 7001) states: "a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form."

[4] This definition's use of "electronic sound" created a rabbit hole where I envisioned a series of "auditory" contract signature proceedings where a person uses their Spotify Playlist to accept contracts.

[5] 15 USCS § 7006

[6] Entities that otherwise would be exempt from coverage under Section 5 of the Fair Trade Commission Act, which most if not all libraries are.

[7] You can find this "encouragement" at https://www.ftc.gov/tips-advice/business-center/guidance/complying-coppa-frequently-asked-questions-0

[8] A great guide for "doing the right thing" is here: https://www.ftc.gov/tips-advice/business-center/guidance/complying-coppa-frequently-asked-questions-0#A.%20General%20Questions

[9] By "enforce conditions," I mean contractually, in a court of law.  A library can always ask a 12-year-old to pipe down, and enforce its Code of Conduct if they do not.  But to collect fees, get a P/G signature!

[10] This question is critical to a library's mission.  While there is no "right" answer, I can say that even facially neutral things such as asking for utility bills, pay stubs, or non-driver ID can alienate people within a library's area of service.  I advise maintaining a list of ID types that includes "the usual" types of ID (driver's license, ss card, birth certificate, non-driver ID), and some other types, as well (report card, lease, or any correspondence from a government agency (with private information redacted)).  The list maintained by NYPL, who clearly gets this issue, made me smile: https://www.nypl.org/help/library-card/terms-conditions.

NOTE: As a primer to this answer, which mostly consists of the requested template, I suggest reviewing the materials in the ever-excellent "NYLA Handbook for Library Trustees,"[1] particularly the guidance and links on page 85.

"Ask the Lawyer" has addressed the issue of "Friends" relationships before.[2] This question presents a chance to address some common areas of concern pro-actively.

Of course, since an agreement is only as good as the lines of communication between the parties who are in it, aside from reviewing this template in advance of discussing it with your Friends, get ready to spend some time on this.  A good agreement is the product of a lot of discussion, back-and forth, and work for clarity—not the other way around.  And if you can, invite your lawyer to the table.

That said, a simple template can be a handy way to frame the discussion.  So with that, here it is:

 

TEMPLATE Cooperation Agreement

_____________ Library

and the

Friends of the ______________ Library

 

This agreement (the "Agreement") between the _________________ Library (the "Library") and the Friends of the  _____________ Library, Inc. (the "Friends") is intended to further the mission of the Library and the mission of the Friends by clarifying the mission-driven collaboration, shared commitments, and terms for collaboration between the two institutions ("Collaboration").

Mission-driven Collaboration

In all matters involving the Collaboration, the Library and the Friends shall be guided by their missions.

The mission of the Library is:

INSERT

 

The mission of the Friends is:

INSERT

 

In furtherance of their missions, the Parties set forth the below "Shared Commitments."

Shared Commitments of the Library and the Friends

Shared Commitment to Ethics

In all matters involving the Collaboration, the Library and the Friends shall be guided by the ethics of their institutions, including the American Library Code of Ethics, the Library Board's Code of Ethics, the oaths of office of the Library Board Members, and the Friends Board's Code of Ethics, and each parties' Conflict of Interest policy.

Shared Commitment to Legal Compliance and Transparency

As not-for-profit institutions governed by a variety of federal and state laws and regulations, the Parties operate under an array of legal obligations, and hereby commit to model compliance and all appropriate transparency in their stewardship of Library and Friend's resources.

Shared Commitment to the Success of the Library

The Parties agree that the very purpose of the creation of the Friends is the continued viability and growth of the Library, and all their Collaboration shall be to that end.

 

In furtherance of their shared commitments, the Parties set forth the below "Collaboration Terms."

Collaboration Terms

Use of Name

In consideration of the support enabled by this Agreement, the _________________ Library consents to the use of the Library's name in the name of the Friends.

Distinguishing the Entities

Although the Friends are allowed, by this Agreement, to incorporate the name of the Library into their name, each party agrees to exert extreme care to consistently distinguish one entity from the other, and to use their respective EIN's, proper corporate names, when relevant proper Charities Bureau number and corporate identification number, at all times to distinguish one from the other.   

This obligation shall be especially critical during any marketing, contracting, fund-raising, event-planning, and when either party communicates with the public or any oversight authority.

Inter-organizational Familiarity

To ensure mutual awareness of each other, the boards shall maintain a shared record of the current information for both parties, as it is available:

• Charter (Library); Certificate of Incorporation (Friends)
• Bylaws
• Fiscal policies
• Conflict of Interest policy
• Current list of Board members and officers
• Plan of Service (Library); Strategic Plan (Friends)
• Social networking addresses
• Meeting Schedule
• Event Schedule

Board Participation

By no later than DATE, the Library and the Friends shall create and maintain a "Library-Friends Collaboration Committee," with at least three board members from each organization, for the coordination of any aspect of the Collaboration, and shall invite no less than three Library board members to serve on the committee in a voting capacity. The committee itself may also appoint three additional members, by majority vote, but the total membership shall not exceed nine. 

The Library-Friends Collaboration Committee shall have no authority to bind either the Friends or the Library.

Committee members shall serve one-year, renewable terms, which run from January to December (the Friend’s fiscal year).  The Committee shall be co-chaired by one appointee from each board, as named by the President of that board.

The stated purpose and authority of the committee shall be "To maintain a strong and routine collaboration between the Library and the Friends, to facilitate planning in furtherance of the mission of the Friends, and to ensure clarity in matters of fund-raising, fiscal goals, and specific donations."

The Library-Friends Collaboration Committee shall meet no less than quarterly, in furtherance of the commitments of this Agreement.

Annual Contribution Ratio

The Friends shall aspire to direct no less than INSERT% of their total annual income to the Library.  Any departure from this percentage shall be subject to a vote by both parties, based on the planned need to temporarily direct resources in another way, for the benefit of the library (for example, the Friends contracting with registered fund-raising counsel for a capital campaign).

Annual Planning Sheet

As part of the operations of "Library-Friends Collaboration Committee" the committee shall create for each fiscal year an "Annual Planning Sheet."  This sheet will list the special asks the library has (including but not limited to funding for acquisitions, equipment, programming, board discretionary funds, or a capital campaign), and will be used by the Committee and the Friends to determine fund-raising objectives for the year, and to pre-identify any departure from the annual contribution ratio.

Donations

The Friends will encourage donors to make "unrestricted" donations (donations without conditions).

If a restricted donation is accepted (for instance, a donation that requires a naming right, or a certain work of art be placed in the Library) the conditions of the donations must first be reviewed for consistency with the Library's controlling documents and strategic plan, and then accepted via a majority vote by the Library's board.

It is expected that at all times the Friends shall maintain appropriate records of donations and donor-restricted donations and shall issue, in a timely manner, letters of acknowledgement in furtherance of any tax credit the donor may qualify for.

Grants

The Friends may apply for grants from government and private entities for the benefit of the Library, but prior to applying for the grant, the conditions of the grant must first be reviewed for consistency with the Library's controlling documents and strategic plan, and then accepted via a majority vote by the Library's board.  This is to ensure that the time and resources used to apply for the grant are not wasted.

If the Friends apply for grants from government and private entities for the benefit of the Friends (for instance, to purchase donor management software, or to buy equipment the Friends will use for events), the Library does not need to be consulted.  However, the Friends and the Library will, through the Collaboration Committee, maintain awareness of grant applications, to ensure there are no redundant requests.

Annual Accounting

In MONTH of each year, the Treasurer of the Library, and the Treasurer of the Friends, shall meet to exchange financial reports, and to independently and/or jointly develop any observations or advice they as Treasurers may have for the Committee or their respective boards.

No Library Resources for Fund-Raising

It is understood between the Library and the Friends that no library employees shall staff a Friends' fund-raising event, and no Library resources whatsoever shall be used in furtherance of such event.[3]

Appropriate Boundaries

To avoid any concerns regarding authority and responsibility, no members of the Friends Board shall volunteer at the Library.

Dispute Resolution

To avoid any concerns to the detriment of the Friends or the Library, in the event either party believes the other has violated its mission, formation documents, charitable purpose, applicable laws and regulations, or this Agreement, the concerned party shall notify the other in writing.

If the dispute is not resolved within ten days, the parties shall agree to retain a New York Bar Association-listed mediator to resolve the dispute.  To select the mediator, the Library shall supply a list of 5 qualified candidates, and the Friends shall select the mediator from the list.  As part of their service as a neutral party, the Mediator shall certify that they may serve without a conflict of interest.

If one full-day session of mediation does not resolve the dispute, the concerned party may seek such other relief as appropriate.

Bi-annual Agreement Review and Amendment

This agreement shall continue for so long as the Friends continue activities for the benefit of the ______________ Library.

Every two years, the officers of the Friends and the Library, shall meet to review this Agreement, or refine their practices that are governed by it, as needed.

This Agreement may be amended through a two-thirds vote by both boards within the same two-month period.

Effective Date and Term

The Agreement is effective upon the date of incorporation of the Friends, and shall continue for so long as both parties are in existence.

With this understanding, on ________, the Board of the ___________________ Library passed a resolution to enter this Agreement effective as of _________________, and the Board of the Friends of the  _____________ Library, Inc. passed a resolution to enter this Agreement effective as of ____________, as signified by the signatures below.

[insert signatures, etc.]

 

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[1] Found at: http://www.nysl.nysed.gov/libdev/trustees/handbook/handbook.pdf

[2] Specifically, here: RAQ #113

[3] This is to avoid any risk of library resources being used in furtherance of a private organization.

Yes, I can!  But first, a few caveats:

• Any template contract is just a starting point.  Use a lawyer to generate a version of this document customized to your library. 

• For any Organization that wants to use your library for a high-risk event (sports, concert with stage or sound equipment, large event open to the public, routine presence of children), whenever possible, additional review for insurance concerns and premises liability is wise.
• When filling this out, always make sure the nature of the Organization is confirmed (individual, DBA, LLC, NFP, corporation, etc.), and you have confirmed they exist as stated. 
• If the form shows that an activity requiring a professional license is going to happen (haircuts, massage, tax prep, legal clinic) obtain a copy of the insurance coverage for the professional activity and make sure it names your Library.
• No political events should occur unless it is confirmed the arrangements conform to IRS and NYS Charities guidance.
• A copy of the signed contract should be kept for 7 years (because the statute of limitations to sue on a contract is 6 years). 

 

ABC Library

FACILITY USE CONTRACT

This contract for facility use is between the ABC Library (the "Library") and INSERT NAME ("Organization") an [insert type organization/individual] ("Organization") with an address of [INSERT], for temporary use of [INSERT ROOM# or Description] in the Library (the "Space").

Details of Temporary Use

Date(s) and time(s) of use     NOTE:  If use is routine ("Every Monday in 2020") note the routine
Purpose of use (the "Event/s").  Please describe the activity to be conducted while you are using the Space.
Estimated maximum attendees
Will you bring in any contractors or third parties under contract for this event?   If so, you must provide the Library with a copy of the contract and they must name the Library on their certificate of insurance.
Please list any special details
Person from Organization who will oversee Organization's use of the Space (must be present at all times) and their back-up person	Name: Cell number: E-mail:   Name: Cell number: E-mail:
[If applicable]   Rental Fee on a per-use basis   NOTE:  If the use is charitable and the fee is to be waived, the use must not involve any political activity as defined by the IRS.
[If applicable]   Fee is payable to [INSERT] and shall be paid by:
Will minors unaccompanied by parents/guardians be attending the event at the Space?   If yes: does Organization have a policy barring abuse of minors, and requiring instances of abuse of minors in connection with Organization's programs to be reported to law enforcement within 24 hours?
Is Organization a chapter or affiliate of a larger organization?   If so, include larger organization's name.
Will the event involve food or the creation of materials to dispose of?   If yes, what time will clean-up, including removal of all trash and recycling generated by the event, be completed?
Organization's Library Contact (the person who will help them with any questions and address any concerns)	Name: Email: Cell:

Library Mission and Terms of Use

The ABC Library's mission is [INSERT].

As part of its mission, the Library requires that all people on Library property abide by all the Library's policies.  In addition, while using the Space, Organization and any person at the Space in affiliation with Organization must at all times follow the below rules, and any reasonable request of any Library representative.

Rules include:

No harassing, abusive, or demeaning activity directed at any person or the Space.

No contact that violates any applicable law or regulation.

In the event of an emergency at the Library, Organization shall abide not only by the reasonable request of any Library representative, but also any first responder assisting with the emergency.

In the event of any injury to any person, or incident of property damage while the Space is in use, Organization will immediately notify the Library Contact listed in the chart above immediately.  In the event of a crime or medical emergency, call 911.

Aside from those attending the event(s) in the Space sponsored by Organization, no filming or taking pictures of any individual in the library (visitor or employee) is allowed, without their express permission.

After use, the Space will be restored to the condition it was in prior to Organization's use, by the Organization, unless otherwise specifically confirmed with the Library Contact.

Organization will not promote the event using the Library/Space as the location until this contract is fully signed and (if applicable) Organization has paid the applicable Rental Fee.

Drafting note: if the Library does not own the building, add any other rules based on requirements in the lease.

Violation of any rules may result in the termination of this Contract with no refund, and denial of future use.

Emergency Cancellation

This Contract guarantees that Library will reserve the Space for Organization as set forth in the "Details" section, above. However, in the event the Library or a related entity experiences an emergency which, in the sole determination of the Library, requires the cancellation of the use (including but not limited to condition at the facility, weather emergency, or event requiring Library's emergency use of the space), Library shall notify Organization as soon as possible, and work with Organization to refund the fee or determine a new date, whichever is preferable.

Indemnification
To the greatest extent allowed by law, Organization hereby agrees to indemnify and defend and hold harmless the Library, its Board of Trustees, employees, agents, and volunteers, from any and all causes of action, complaints, violations, and penalties, and shall pay the cost of defending same, as well as any related fines, penalties, and fees, including reasonable attorneys' fees, related to Organization's use of the Space, including conduct by any third party or contractor present at the Space as part of the Event/s.

Insurance
Organization shall provide insurance meeting the requirements shown in exhibit "A."

Drafting Note/Instruction: the person at the Library organizing the contract will either select the default insurance requirement, which is the conventional insurance demand, or it shall be determined that no insurance is required.  For organizations conducting routine meetings, and especially if children are served by the Organization, the library's lawyer, and/or your insurance carrier will almost always advise insurance be required. 

Person signing for Organization
The person signing on the line below on behalf of organization is at least 18 years of age and has the power to sign for the Organization.
 

Venue for Dispute
This contract and any related action shall be governed according to the laws of the state of New York, and Venue for any dispute shall be INSERT county, New York.

Accepted on behalf of the Library:___________________     on:___________

                              Print name:__________________

 

 

Accepted on behalf of the Organization:___________________          on:___________

                              Print name:________________________

Many of the questions we get at "Ask the Lawyer"[1] relate to this concern.  As the priorities cited by the member suggest, the library-municipality relationship is a Big Issue.

I have worked with city, town, and village attorneys, in one way or another,[2] for most of my professional life. So I can understand why sometimes, if they are focusing on reducing liability or overhauling operations, a town board or a city mayor might be tempted to think of the library as "just another department."

But we know that is not the case.

With all that in mind, I am very grateful to have this opportunity to craft a pro-active answer to this issue.

I am going to let the requested sample Memorandum of Understanding—or "MOU"—do most of the talking on this topic.  For comments on why I have included certain things, you'll see footnotes and items in italics that should be removed from any final version (unless you have a really fun-loving and tolerant town attorney).

Caveats

Of course, with all things "template," this MOU should only serve as a boilerplate.

Further, libraries with very sensitive or less-than-ideal relationships with their municipalities might want to use this only as an internal guide for discussion.  It's not a fun fact, but it remains a fact that some municipal leaders could take a "request for clarity" as an act of aggression.

And as noted throughout, to the greatest degree possible, your library should consult their own attorney about the different considerations in this template.[3]  With that in mind, I hope this document is a useful starting place for that attorney, and I welcome calls from lawyers working with this document.[4]

And here we go:

USING THIS TEMPLATE:  Any guidance in italics, and the footnotes, should be removed before an MOU using this template is finalized.  If at all possible, the MOU and attachments should be reviewed by an attorney before signature.  Items in bold are non-negotiable; they are based on the law and are not subject to change.[5]

 

[PROPOSED] MEMORANDUM OF UNDERSTANDING

Between the [NAME] Library and the [MUNICIALITY]

This memorandum of understanding is between the [NAME] Library (the "Library") and the [INSERT NAME OF MUNICIPALITY] (["GOVERNMENT ENTITY" or "GE"][6]), which both serve the community of [INSERT NAME OF MUNICIPALITY] (the "Community").

This memorandum of understanding ("MOU") is entered into by the Library's Board of Trustees (the "Library Board") and the [AUTHORITY OF THE ENTITY[7]] ("[GE AUTHORITY]"[8]) and is intended to ensure clarity and unified purpose with regard to critical interdependencies between the Library and the GE.  Together, the Library and the [GE] are the "Parties" to this MOU.

As a living document this [first] version of the MOU sets forward both items of clarity, will be revisited by the Parties in the month of [INSERT] every [TIME SPAN[9]].  

Mission and Shared Purpose

The mission of the Library is [INSERT MISSION].

The mission of the [GE] is to [INSERT MISSION].

The Library and the [GE] share the mission-oriented purpose of serving the Community within the [GE] by [compose and insert "shared purpose"[10]]; this is their "Shared Purpose." 

 

The Parties

The Library is a public library chartered by the Regents of the New York State Education Department on [DATE], as shown in the most recent version of the Charter attached as "A" (the "Charter").[11]

As required by law, the Library is governed by a board whose authority is set by sections 255, 256, 260, and 226 of the New York Education Law, the Not-for-Profit Education Law, the Charter, and the bylaws of the library.  A copy of the most current bylaws of the Library is attached as "B."  

The [GE] is a Municipal Corporation incorporated under the laws of New York State in [YEAR]. 

As required by law, the [GE] is governed by [INSERT][12].

A copy of the [GE] Code (the "Code") may be found at [insert code link[13]]. 

[IF RELEVANT] The provision[s] of the Code pertaining to the Library are attached as "C."

 

The Relationship of the Parties

As a Regents- chartered entity, the Library is an independent corporation with the ability to own property, enter into contracts, employ a workforce, and maintain its own bank account for the management of library funds. 

Further, the Library is required by state law and regulation to employ adequate employees to staff the Library in fulfillment of its Plan of Service, which is attached as "D."[14]

Since the [GE] and the Library are two distinct entities, many of their operations occur independently of the other.  However, for the sake of their Shared Purpose, the leadership of the parties have determined that certain "Critical Interdependencies" are in the best interests of the Community.

These "Independent Operations" and "Critical Interdependencies" are itemized below, with comments or additional information in column 3.[15]

Operational item	Independent Operation or Critical Interdependency? When possible, check your conclusion with your lawyer before making a final determination.	Important information or attachment
Ownership of Library Building   This should specify if the library or the municipality owns the structure housing the library.	If the GE owns the structure but charges no rent (or $1), it is a "critical interdependency."  If the library owns its premises, it is an "independent operation."	Attach a survey or schematic of the library's complete property as "F".[16]
Maintenance of Library: capital improvements   This should specify who takes the lead on capital projects and how the parties will work together for remodeling or building a new library.	By "take the lead," I mean: who signs the contracts for the work and manages the different factors in the capital project?   If the GE "takes the lead" on capital improvements, it is a "critical interdependency."  If the library takes the lead, it is an "independent operation."	The library should always have copies of warrantees and contracts related to capital improvements.
Maintenance of Library: emergency repair   This should specify what happens when a pipe bursts and you need to stop the water and fix the pipe, or who makes sure the elevator gets fixed promptly (we'll handle damage to library assets in another section).	If the GE is responsible for arranging emergency repair, it is a "critical interdependency."    If the library does, it is an "independent operation."	This is a great place to list who to call in the event of a facilities emergency.
Maintenance of Library: landscaping and snow removal   This should specify if the library or the municipality does the work or contracts for it.	If the GE is responsible for external routine maintenance, it is a "critical interdependency."    If the library does, it is an "independent operation."	This should establish not only the party responsible, but set the expectations for service (for instance, should the driveway be plowed before the employees arrive on a snowy day?  That sounds good to me).   If performed by a third party, the library should always have copies of contracts related to grounds maintenance, even if the contract is with the GE.
Maintenance of Library: routine cleaning   This should clarify the line between "routine" cleaning (like weekly vacuuming) and "non-routine cleaning" (like cleaning up when a printer cartridge breaks open near the rare book room), and specify if the library or the municipality does or contracts for the work.	If the GE is responsible for routine cleaning, it is a "critical interdependency."    If the library does, it is an "independent operation."	If performed by a third party, the library should always have copies of contracts related to routine cleaning, even if the contract is with the GE.   Details such as when the cleaning is, and the levels of access of workers, are important to clarify.
Damage to library structure: insurance coverage   This should specify what insurance covers damage to library structure.	If the GE coverage applies, it is a "critical interdependency."    If the library supplies its own coverage, it is an "independent operation."	The board should always have a copy of the policy covering the library structure, and the copy should be in the cloud, not just in the library.   Always.  This should not be left to chance.   Current insurance policy or amount determined for "self-insurance" by municipality is attached as "F."
Library Security Personnel   This should specify if the library or the municipality supplies any security personnel.	If the GE is responsible for security personnel, it is a "critical interdependency."    If the library employs or contracts for its own security, it is an "independent operation."	Any discussion of this or contracts relating to security should emphasize rights of access and patron confidentiality, and clearly establish who is "in charge" of the security personnel (who tells them what to do).
Library Security System, including any cameras   This should establish who pays for, monitors, and owns the system and any content on it.	If the GE is responsible for security personnel, it is a "critical interdependency."    If the library employs or contracts for its own security, it is an "independent operation."	Any discussion of this or contracts relating to security should emphasize rights of access and patron confidentiality![17]
Insurance coverage for damage to library assets (collection, furniture, equipment)   This should specify what insurance covers damage to library assets (not the structure).  The type and amount of coverage should be assessed on an annual basis by the board of trustees.	If the GE coverage applies, it is a "critical interdependency."    If the library supplies its own coverage, it is an "independent operation."   To help with this item, a library should have an inventory of its assets.	The board should always have a copy of the insurance policy covering the library assets, and the copy should be in the cloud, not just in the library.   Always.  This should not be left to chance.     Current insurance policy is attached as "G."
Employees: who is the employer	The employer of the employees is the library, not the [GE].	This is not negotiable.
Employees: who processes payroll and tracks leave accruals[18]	If the GE issues the paychecks, it is a "critical interdependency."    If the library runs its own payroll, it is an "independent operation."	Whatever entity (or third-party contractor) is doing this, it must be done properly and with proper retention of payroll records and paid time off accruals.
Employees: who administers benefits	If the library employees get benefits (health insurance, retirement) through the GE this is a "critical interdependency."    If the library arranges its own benefits, it is an "independent operation."	Copies of Summary Plan Documents ("SPD's") or other benefit descriptions are attached as "H"
Employees: what coverage applies for workers' compensation, paid family medical leave, and disability?	If the library employees are covered through the GE, this is a "critical interdependency."    If the library arranges its own coverage, it is an "independent operation."	This is another one to have absolute clarity on!    Your library should have the most recent mandatory postings[19] up in an area accessible to employees, confirming this clarity.
Employees: what employee policies apply, and who is responsible for determining them	The employer of the employees is the library, not the municipal entity.  While the library may "borrow" some or all municipal policies, within the constraints of applicable law and regulation, the board of trustees determines the employment policies.
Sexual harassment/civil rights complaints, whistleblower complaints, resolving conflict of interest matters	These complaints must always be managed by the Library Board per the relevant library policy.
Library Emergency Response Plan(s)   Optional but encouraged	The entity responsible for the library's response in an emergency is the Library Board, not the municipal entity.  While the library may "borrow" some or all municipal policies, within the constraints of applicable law and regulation, the Library Board determines any emergency response-related policies.
Facility use policies	Regardless of whether the library owns the building, or is a "tenant," only the Library Board determines facility use policies of the library (for example, rental or free use of rooms and other library space).	A good facility use agreement establishes the rules of use, confirms if/how liability for the use is transferred (hold harmless, indemnification), and addresses if insurance is necessary.
Banking   Who hangs onto the money?[20]	Library funds are solely controlled by the library, regardless of where the funds are kept.   Even if the operational funds of the library are held by the GE, this "critical interdependency" should be confirmed as being in aid of separate and distinct library finances solely controlled by the Library Board.	Money can be a HUGE source of dysfunction between a library and its municipality.  Before picking any battles, the Treasurer, director, and board should have clarity about their expectations and goals for stewarding the funds of the library.  This is a good topic to stay in touch with your system, Library Development, and your lawyer on.
Fiscal controls (petty cash, cash handling policy, book-keeping, accounts receivable and payable, use of credit card, tracking restricted funds, tracking capital funds)	To the extent needed, and consistent with a public library boards autonomy over library finances, these policies are to be adopted by the Library Board.
Audit	Different libraries will have different audit obligations, but all are subject to audit by the New York State Comptroller.   Any audit of the library should be done with the awareness of the library board.	The last 10 years of audits should be accessible for review by the parties.
Procurement and disposal of library assets[21]	Although controlled to a certain extent by law, procurement and disposal of library assets are solely controlled by the Library Board.
Budget	The library budget is passed by the board.
Library System	The library board is the entity that decides to sign any Library System membership agreement.	A library facing a determination based on any of the factors in this chart should reach out to their System as soon as possible for assistance.  Although every system is different, they will be a critical ally in navigating these items.  Remember, you are not alone!
Custom factors special for your library	Every library is different.  Use this section to track custom factors that impact your library-municipality relationship.	There are so many cool, odd, special things out there in library world, I am only surprised when a day goes by and I haven't learned about a new one.
Directors and Officers insurance and/or indemnification of library trustees	If the GE provides coverage and/or indemnification[22], this is a "critical interdependency."    If the library has its own policy, it is an "independent operation."	The board should always have a copy of the policy covering the library trustees and directors against assertions of liability in the course of their library duties.   Always.  This should not be left to chance.   Current insurance policy is attached as "I."

 

Acknowledged on behalf of the [NAME]Library on _______:

BY: _______________________________________________

 

Acknowledged on behalf of the [NAME of ENTITY] on _______:

BY:______________________________________________

 

 

Attachments:

A: Library Charter

B:  Library Bylaws

C:  Section of municipal code pertaining to library

D:  Library Plan of Service

E:  Survey or schematic of library property

F:  Current Insurance Policy (premises)

G:  Current Insurance Policy (assets)

H:  Benefit documents

I:   Current Insurance Policy ("Directors and Officers Insurance")

 

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[1] For example: RAQ #50; RAQ #62; RAQ #93

[2] My first experience with municipal law was when I worked for attorney Dan Seaman, who has served as the town attorney for many towns and villages in Niagara County, New York.  My former partner Daniel Shonn was the town attorney for Akron, NY, and I covered town meetings from time to time.  I worked closely with the Town of Lewiston and the City of Niagara Falls attorneys when I was the in-house counsel at Niagara University.  And lately, even though I love my city very much, I just can't stop suing Buffalo (on behalf of clients), so they are really getting to know me at the city law department.

[3] Critical difference between an "MOU" and a contract: an "MOU" is, by design, not intended to be enforceable-although it may recite items that are enforceable via other means (for instance, if they simply recite something that is mandatory under the Education Law, which this one will).  For libraries seeking to elevate an MOU to an enforceable agreement, it is best to work with a lawyer from the get-go.

[4] (716) 464-3386, or adams@losapllc.com.

[5] Any NY library system that wants a fillable version of this MOU Template can write to Jill@stephaniecoleadams.com

[6] For this item, you will select whatever type of entity you are working with: city, town, or village.  For this template, we're going to call it the "GE" (for "government entity"), although that will make it sound like you are trying to make them turn right in the 1800's.

[7] The authority entering into the MOU will vary depending on the entity type.

[8] This name will also be modified to reflect what applies to your municipality: Town Supervisor, Village Board, City Common Council, etc.

[9] This "time span" should be selected to ensure you never have a fresh board of trustees and municipal leaders who don't know how things need to function.

[10] A nice "shared purpose" might be "the service and betterment of those living in our community."  It's nice to revisit the "shared purpose" every now and again so leadership is invested in it and it doesn't get stale. 

[11] Make sure you use the most recent version of the Charter.  An updated copy can be obtained via a request to New York State Education Department, Division of Library Development.  If there is enabling legislation, attach that, too, since the legislation can impact some of the variables in the chart.

[12] This is whatever combination of leadership calls the shots for the municipality: town supervisor and board, etc.

[13] I am sure I don't need to tell a library audience that most municipalities have their codes online, but I just love footnotes.

[14] Yes!  This MOU will need a binder or a routinely updated database to hold all the attachments!  Don't you love it?

[15] From what I have seen—and at this point, it's a lot—every library working with a municipality handles this differently.  It's like a Myers-Briggs personality test...endless permutations, even within similar types.

[16] Knowing the exact physical footprint of the library is critical!  Among many other things, this is how you set the boundaries for the limit on things such as, for example, smoking near the property.

[17] This is critical for compliance and clarity about patron records under the New York Civil Procedure Laws and Rules (CPLR) 4509.

[18] A not-so-fun, but instructive, read on this topic is found in the NY State Comptroller Audit found here: https://www.osc.state.ny.us/sites/default/files/local-government/audits/2018-09/lgsa-audit-library-2018-brentwood.pdf

[19] A list and copies of most postings is here: https://labor.ny.gov/workerprotection/laborstandards/employer/posters.shtm

[20] Extensive information on this topic is found here: http://www.nysl.nysed.gov/libdev/trustees/handbook/pltreasurer.htm

[21] A good example of this is in Ask the Lawyer RAQ #68

[22] "Indemnification" is when an organization defends a director, officer, or employee in a lawsuit (like a discrimination claim).

Like many of you, I have had to tackle a lot of previously unaddressed conundrums since March of 2020.  Especially when it involved developing a Safety Plan, this "tackling" has required research, patience, a good sense of humor, and lots of flexibility.[1]

The issue of how to handle 1) newfound concerns regarding the sanitary conditions of workplace toilets; and 2) newfound concerns about sanitary conditions of toilets in public spaces, is one of the most high-stakes and complex.  It can cause a lot of anxiety.

When a matter makes me anxious, I resort to either exercise, or exacting linguistic specificity.  Since you don't come to "Ask the Lawyer" for workout tips[2], I will address this anxiety-provoking issue with exacting linguistic specificity, starting with the Occupational Safety and Health Administration (OSHA)'s definitions of the different terminology used for bathrooms[3]:

Personal service room, means a room used for activities not directly connected with the production or service function performed by the establishment. Such activities include, but are not limited to, first-aid, medical services, dressing, showering, toilet use, washing, and eating.

Toilet facility, means a fixture maintained within a toilet room for the purpose of defecation or urination, or both.

Toilet room, means a room maintained within or on the premises of any place of employment, containing toilet facilities for use by employees.

Urinal means a toilet facility maintained within a toilet room for the sole purpose of urination.

Water closet means a toilet facility maintained within a toilet room for the purpose of both defecation and urination and which is flushed with water.
 

Now, before we go further: a few words about OSHA.  Based on size, location, type, and a dozen other factors, there is no one-size-fits-all for OSHA compliance. But public employers (like many libraries) in NY are required to follow OSHA's standards for employee toilets[4], and non-public employers, whose bathroom-supplying obligations will change by site and size of the organization, can refer to those standards for inspiration.[5] And OSHA (along with the Center for Disease Control, or "CDC") is currently a New York State Department of Health (NYSDOH) go-to for COVID-related sanitization information. 

So with those three resources in mind (NYSDOH, CDC, and OSHA), let's address the member's questions:

QUESTION 1: Should we lock the restrooms to the public entirely?

The first question to address in this is not "should" the library lock the restrooms to the public entirely, but can it?

Any library considered a place of "public assembly,"[6] by state regulation, must have a bathroom open to the public.[7]  However, the definition of a "place of public assembly" expressly excludes public association and free libraries, so yes, and while a municipal library will have a few more hoops to jump through, an association library can decide to limit access by the public.

If your library isn't required to have a "toilet facility" accessible by the public[8], and the capacity of your library means the toilet facility can't be routinely cleaned per the NYSDOH's recommendations, it is worth considering reducing or shutting access down.[9]

 

QUESTION 2: Should we lock the restrooms and require the public to ask for a key?

If this would help monitor use so the bathroom can be cleaned on an as-needed basis per NYSDOH/CDC/OSHA recommendations, yes, that is a viable option, and can be included as part of a Safety Plan. 

Should we return to our pre-pandemic practice of completely open restrooms cleaned once a day?

OSHA states: "Employers operating workplaces during the COVID-19 pandemic should continue routine cleaning and other housekeeping practices in any facilities that remain open to workers or others. Employers who need to clean and disinfect environments potentially contaminated with SARS-CoV-2 should use EPA-registered disinfectants with label claims to be effective against SARS-CoV-2."

Meanwhile, the Phase II Safety Plan template from New York State requires any library to: "Conduct regular cleaning and disinfection at least after every shift, daily, or more frequently as needed, and frequent cleaning and disinfection of shared objects (e.g. tools, machinery) and surfaces, as well as high transit areas, such as restrooms and common areas, must be completed."

So, although there is no mathematically determined heightened standard, these requirements show that routine disinfection should be based on frequency of use, and at a bare minimum, bathrooms should be disinfected at least "once per shift," and there should be a log to register each cleaning (just as the member described they are already doing).

 

QUESTION 3: Should we require non-janitorial staff to clean the restrooms during open hours, and, if yes, how often, and do they require training on the products and methods required to clean a public restroom during a pandemic--and what kind of PPE does that require?

This is a tricky question.  "Requiring" non-janitorial staff to do a task not in their job description risks concerns with morale, operational consistency, and if there is a contract involved, compliance (this will vary from library to library, of course).  And if the cleaning supplies trip a person's health conditions, there might also be concerns with ADA. 

Because of this, like all aspects of the Safety Plan, the requirement to sanitize surfaces in the bathroom(s) must be planned carefully. 

That should start with an analysis of the toilet facility, just as the member asking this question has done.  Does it have one toilet or many?  Does it have touchless sinks or sinks with handles?  Is the tile in good condition, or is the grout failing?  In short, what does it take to sanitize your library's unique space effectively?

One you've done the analysis, select the right products from the EPA's list of products known to effectively combat COVID-19, and based on the instructions on the product, select the method of disinfection that meets the needs of your operation, including the frequency.  And once you have established the method and the frequency, the requirements for employee PPE and training are here: https://www.cdc.gov/coronavirus/2019-ncov/community/disinfecting-building-facility.html and they include a link to a pdf poster about safe disinfection of the work site: https://www.epa.gov/sites/production/files/2020-04/documents/disinfectants-onepager.pdf.

 

And finally, the last part of the member's submission: Any guidance on how to handle ostensibly public restrooms in an ostensibly public building is appreciated.

This is a great summarizing statement, because as it hints, and as this answer reviews, not all "public" restrooms are actually required to be open to the public at all.  Once you have confirmed the requirements for your particular library, it's time to assess what you can do—and what your mission demands that you do.  If that means reducing toilet facility access to minimum required levels, so employee energy and your library's budget can focus on service to the public, make it so.  If that means re-allocating part of the budget to hire a contractor specifically to clean the bathrooms every four hours since your library knows public access is either required or essential, and your library isn't situated to add that to employees' job descriptions, do that.  And if that means employees are expected to take on new duties to effect routine sanitization, develop a well-thought-out rollout plan[10] before implementing that as an express job duty.[11]

But whatever you do with the restrooms, the key is to consistently document that your library is following the NYDSOH, CDC, and OSHA guidelines suited to its unique site, location, and identity.

Thank you for a great question and a great example of the care libraries are taking to stay open and safe for the public.

 

 

 

---

[1] One of my co-workers rejected my first idea for managing our narrow hallway in the office.  "I will not announcement my presence by yelling "Gang Way!", Cole."  We settled on a protocol of visual inspection, first.   Even when your name is over the door, a Safety Plan is a matter of give and take.

[2] That said, if you suffer from carpel tunnel or sore forearms from too much typing, put your hands down flat (palm side up), stand on your fingers/palms, and pull upwards for 1minute 3xday.  Changed my life. 

[3] The OSHA-specific information is aggregated at this link: https://www.osha.gov/SLTC/covid-19/covid-19-faq.html#restrooms

[4]  This standard is enforced by the New York State Department of Labor Public Employees Safety and Health Bureau (NYSDOL PES) for public employees.

[5] Further information on required numbers of toilets can be found here, but for the sake of brevity, I am not going to go there: https://dos.ny.gov/system/files/documents/2021/05/tb-2011-required-toilet-facilities-based-on-occupancy.pdf#:~:text=Using%20exception%20number%204%20to,25%20and%20less%20than%2050

[6] Per New York State Labor Law, §2, a “Place of public assembly” shall include (1) a theatre, (2) moving picture house, (3) assembly halls maintained or leased for pecuniary gain where one hundred or more persons may assemble for amusement or recreation, except (a) halls owned by churches, religious organizations, granges, and public association and free libraries as defined by section two hundred fifty-three of the education law, and (b) hotels having fifty or more rooms. [emphasis added, note the exclusionary language].

[7] 12 NYCRR 36-2.8

[8] Be careful in this analysis; if possible, confirm any conclusion that you don't have to have a public bathroom with your local attorney, or the municipal building inspector.

[9] Just be mindful that General Business Law Section 492 requires any place of business with an employee bathroom to let a visitor use that bathroom if it is a medical necessity.  While your library might not be a "place of business" under that law, people with medical needs may have an expectation of access.  Be ready to be flexible if there is a medical need for a toilet facility.

[10] This could simply mean thinking the Safety Plan through, meeting with employees to make sure they are on board with it, and making sure every employee has clarity about safety.  It can also mean working with your civil service agency or local attorney, so any contractual aspects are properly considered.  Since these are tense times for employees, good planning and communication about job duties is essential.

[11] In many library environments, it will be fine to add sanitization as a "duty as assigned," but in other places (with detailed job descriptions, a union contract, or contracts or policies that could impact the "assignment") it will not.  This concern cannot be answered generally; it will vary from library to library.

This is a heart-breaking question, and I am sure it has been a hard process to get to this phase in your operations and planning.

In the state of New York, it can be a violation of both state and federal law to deny a person an employment opportunity on the basis of age or disability.  However, when a person cannot perform their essential duties due to a health concern, and no reasonable accommodation can help them do so, that person may have to leave the position.

Which brings us to the member's question: "So how can we effectively accommodate public librarians who are asking to *not* work with the public?"
There is a lot of wiggle room in this type of question, because the answer will change from library to library, but that also makes it hard to answer generically. 

Since I can't give an answer, I can do the next best thing: an array of questions to help members assess their own library's response to this type of disability accommodation[1] request:

Consideration	Why this is important	Your answer:
Are the impacted employees Civil Service?	Any assessment of job duties, changes, and consideration of alternation of essential duties should be done with your Civil Service agency's input.
Does your library have to abide by the Americans with Disabilities Act, and if so, what are its precise obligations?	Precise ADA obligations change based on library type, size, location, and funding.    This is a factor that should already be known and addressed in the library's policies or employee manual, or with input from your Civil Service agency.
Does your library have to abide by the New York State Human Rights Law?	Precise NYHRL obligations change based on library type, size, location, and funding.   This is a factor that should be known and addressed in the library's policies or employee manual or with input from your Civil Service agency.
Are the impacted employees governed by a collective bargaining agreement ("union contract")?	The union contract may control how employees’ duties may be assigned/re-assigned and offer additional protections and considerations.
Do you have a copy of each job description involved, and are those job descriptions current and accurate?	Before assessing if an employee can be granted a reasonable accommodation, or must leave their job due to disability, make sure their job duties and reporting structure are accurately set forth in their job description.
Looking at the job description, what are the elements that the employee is stating that they cannot perform due to medical factors?	This should be confirmed in writing between the library and the employee (and as needed, review with Civil Service).
What accommodations can allow the employee to still perform their essential function?  Can those accommodations be implemented by the library?	Isolating these factors, and confirming them with Civil Service when they impact job duties, will position the library to assess if accommodations (like not coming into close proximity with the public) is possible, and if so, if they are reasonable.
After considering its legal obligations, operational needs, and the specific request, can the library reasonably accommodate the request?	The answer may be "yes," or "no."  In the member's scenario, if an essential duty requires activity that, even with all applicable safety provisions, cannot be done by the employee due to a medical concern, the key question is: can the library accomplish the essential element?  As the member writes, that might be hard.	This is the part to review with your library's attorney, prior to acting on any determinations.
Look at the big picture, and plan accordingly.	When the assessment/s is/are done, look at the overall impact.  How will this impact the Plan of Service?  Or employee morale? Develop a plan to get any messaging right, while respecting employee privacy.	This is the part where you review the big picture with the board personnel committee, civil service agency, and/or attorney.  The goal is for directors to be empowered to make decisions about workforce matters, with appropriate support for the plans.
Effect decision-making.	Plan out any accommodations to ensure they are supported by your COVID-19 Safety Plan, and create a schedule for implementing any necessary workforce changes.  Make sure the plan makes room for communicating changes to employees, in a way that will build team cohesion.[2]	Generate documentation to show compliance with the plans.

I know no chart can take the place of a solid plan that considers the needs and resources of your library, the well-being and privacy of your employees, but hopefully this chart can help you develop one. Together with the more general guidance in an earlier answer, these are the fundamental steps to consider.

Thank you for being willing to pose a difficult question.  I wish your library well at this difficult time.

 

---

[1] The employee can call it whatever they want, but a request to change job duties on the basis of a medical condition (including the condition of having heightened vulnerability to infection) will generally be considered an accommodation request under the ADA or the New York State Human Rights Law.  Therefore, any library entertaining such a request should evaluate is as they would a disability accommodations request, which as stated in this answer, will vary from library to library, based on their policy (which should be based on the precise way the laws apply to that specific institution).

[2] Yes: It can be very tough to acknowledge someone is leaving, and then try to focus on "team cohesion."  And it can be doubly tough when a medical concern, and inability to offer an accommodation, leads someone to leave on disability (which of course is confidential, and cannot be shared by the library).  But at the same time, the right message can help with employee morale.  This is why strategizing with an HR professional or Personnel Committee Chair, to organize some talking points on those things, can be so important.

OPENING NOTE: Before I answer this question, I must stress: while some of it is identical, the quoted language in the question does not exactly track the language in the “2018 Handbook for Library Trustees in New York State,” nor the “United for Libraries Public Library Trustee Ethics Statement.”  This reply addresses the language as quoted in the question and does not address the precise language of the Handbook or the Ethics Statement.

Here are the words of the First Amendment:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

I have been thinking a lot about these words, lately.  Business restrictions, social distancing, mask-wearing, protesting…2020 has evoked them, again and again.[2]

For this question, these strong, simple words are contrasted against the laws, regulations, and documents setting the terms of service of a public library board member. 

Let’s review those terms of service:

• In the State of New York, public and private libraries are chartered by the NY State Education Department, as authorized by Education Law Section 255.
• Whatever “type”[3] a Regents-chartered library is, it is always considered an “education corporation,”[4] to be governed, in part, by the Not-for-Profit Corporation Law.[5]
• Although they are “education corporations,” public libraries bear some hallmarks of government entities: trustees must take oaths of office, most employees are part of the Civil Service, and there are significant, government-aligned requirements for procurement, audit, and accounting.
• And of course, public libraries are subject to the Freedom of Information Law, the Open Meetings Law, the laws of their host municipalities, and the requirements of their own charters, bylaws, and policies.

This elaborate grid of law, regulation, and governance creates not only a public library--it creates the conditions for service by the public library trustee. 

Overarching all of this is the First Amendment, with its shifting assurances of unfettered freedom of speech and association. These shifting assurances include (but are not limited to): the right to say something (“free speech”), the right to not say something (no “compelled speech”), the freedom to attend meetings and gatherings (“association”), and the right to protest and advocate for your point of view (to “peaceably petition the government for redress of grievances”).

I say “shifting assurances,” because as is widely known, the tests for violations of the First Amendment depend on the context of the speech.[6]  Depending on the government interest to be advanced, or the nature of the speech impacted, the Supreme Court has created various tests to assess the Constitutionality of governmental actions impacting expression.[7]  One of those “contexts” is the voluntary acceptance of public library trustee service, which means agreeing to serve in alignment with certain laws. 

Here are just a few examples of how, even though every person on a public library board has First Amendment rights, speech and association of a trustee may be “limited” by law:

• Trustees must take an Oath of Office,[8] which is arguably “compelled speech” required by the Education Law and the Public Officers Law;
• Trustees must agree to follow the library’s “Conflict of Interest” policy, which is arguably “compelled speech” required by both the Not-for-Profit Corporation Law and the mandated Oath of Office;
• Trustees must meet at least quarterly and if individual members do not attend, they may be removed, which is arguably “compelled association” required by the Education Law;
• Trustees must not divulge communications designated by statute as confidential (whether or not they were discussed at executive session)[9] which is arguably “restricted speech” but is a condition confirmed in a number of judicial and Education Commissioner decisions;
• Board members must abide by a library board’s code of ethics or risk being removed for misconduct.

Each of these examples is an instance where library trustees must curb or engage in behavior due to their special status as a public library trustee.  Each is a well-established condition, limiting or prescribing actions and expression, voluntarily undertaken as part of a valuable public service.

So, it is clear that library trustees must accept some conditions impacting their First Amendment rights, as a condition of board service.  But what about the language cited by the member’s question?

Most of the language in the question, as presented, does not lend itself to any concerns about the First Amendment; in fact, most of it does just the opposite.  By requiring a board member who is expressing a personal opinion to clarify that they do not speak for the full board or the institution, the language allows a trustee to express their personal position without jeopardizing their duty as a fiduciary who must act solely in the best interests of the institution.  Further, citing “the best interests of the library” and “the cooperative nature of the Board” emphasizes how a board must collaborate in good faith to achieve board decisions based solely in the trustees’ role as fiduciaries, which is consistent with both the Not-for-Profit Corporation law, and the cases construing duties of boards. 

In short, most of the language allows a trustee to perform their duties while exercising their First Amendment rights.

All that said, I have First Amendment concerns about the following phrases:

“…supporting the formal position of the Board even if they disagree.”

“…if a trustee is actively working against the interest of the library or Board decisions …”

 

What are my concerns with these phrases?

I have concerns because the meaning of these phrases, while evocative of a trustee’s “duty of loyalty”[10] to the library they serve, is ambiguous.   Ambiguity—by which I mean uncertainty about what exactly is being required--does not work well when free speech is implicated; and the uncertainty caused by a term being vague or overbroad creates risk. 

Here is how that risk plays out:

The following are some examples [11] of behavior that could be characterized as a trustee “actively working against the interest of the library or Board decisions…” that would violate the trustee’s duty of loyalty, and thus if punished with removal or censure, would NOT create First Amendment concerns:

• A trustee knows it is in the best interest of the library to fix the roof in 2020, but publicly advocates waiting until a roofer they personally like (a neighbor or a drinking buddy) is free to perform the work in 2021;
• A trustee knows that Candidate #1 has the best qualifications for the job, and therefore hiring Candidate #1 is in the best interest of the library, but thinks Candidate #2 will make their friends happier, so publicly endorses and votes for #2;
• After appropriate due diligence and discussion with legal counsel during executive session, the board votes to buy the lot next door and to roll out news of the decision in a particular way.  A trustee, by virtue of information learned during the process, knows that the decision complies with all applicable laws and regulations, but still organizes a petition asserting the purchase is “illegal.”

Any of these, if proved, could be grounds for removing a trustee for “misconduct” and removal with no First Amendment defense to fight the removal. 

HOWEVER, as I said, the ambiguity of the quoted phrases, and some of their possible implications, concerns me.  To flip my examples around, here are some examples of behavior that could be characterized as a “trustee is actively working against the interest of the library or Board decisions…” that would NOT violate the duty of loyalty, and if punished with removal or censure, COULD create concerns under the First Amendment:

• A trustee knows it is in the best interest of the library to fix the roof in 2020, but the only roofer to bid on the contract as authorized by the board has an established track record of defective work which is not being considered in the procurement process. In the days before the scheduled vote on the contract, the trustee publicly—and clearly only speaking for themselves—advocates a new procurement process and project timing that will attract roofers with a better record of performance;
• A trustee sees that the new director, while excellent in many ways, does not have experience organizing a move to a new building, so despite a previous decision by the board to not hire a consultant to assist with the move, re-introduces a resolution to hire a consultant, and publicly (but respectfully) shares their reasons for the procurement;
• A trustee, by virtue of information learned at executive session, has a genuine concern that a planned land purchase will not comply with all applicable laws and regulations, and reaches out to a private attorney to confidentially share their concerns.  Once those concerns are confirmed, the trustee shares the concerns in another executive session.  The board ignores the concerns, so the trustee—taking care to state that they are speaking personally and not for the board--THEN (without divulging attorney-client privileged information from the sessions) writes to the state Comptroller and the Attorney General for guidance, and writes a letter to the town paper stating simply that they hope to have time to gather further information.

If this seems complicated: it is.[12]  This is why there is a 132-page Handbook for library trustees, why there is currently a state-wide discussion about mandated training for library trustees, and why libraries have lawyers. 

Serving as a public library trustee is truly a role like no other.  To support the people in that role, if I were to word-smith the phrasing I have expressed concerns with, it would read (shown here with tracked changes):

"Trustees must distinguish clearly in their actions and statements between their personal philosophies and attitudes of those of the library, acknowledging and supporting as legitimate the formal actions position of the Board even if they disagree."

"When any trustee acts in a manner that is not in the best interests of the library or is inconsistent with thein a cooperative nature of the Board, the Board Chair shall discuss the issue with the trustee in a direct and constructive manner. Specifically, if a trustee is negligent in attending meetings to an extent that affects the operation of the Board, if a trustee is  engaging in misconduct or neglect of dutyactively working against the interest of the library or Board decisions, if a trustee acts or speaks on behalf of the Board on any matter without prior approval of the Board, or if a trustee or his/her family benefits personally from any library matters, that trustee may be asked to resign from the Board by majority vote of the trustees. The trustee will be asked to resign from the Board by letter from the Board Chair, and the trustee will be asked to send a letter of resignation to the Board Chair."

I suggest adding the words “misconduct” and “neglect of duty” because they come straight from Education Law 226(8), and as such, they are less prone to mis-interpretation.  On the flip side, I suggest removing the phrase, “actively working against,” because that phrase has no basis in law, regulation, or case law;[13] therefore, it risks mis-interpretation.  Since First Amendment decisions often turn on a phrase’s precise meaning (through definition or usage), these are more reliable choices.

To put this plainly: I am concerned that the language, as presented by the member’s question, creates the possibility of a public library chair thinking it is appropriate to tell a public library trustee: “The majority of the board voted to fix the roof this year, it’s a done deal, and now you have to keep quiet about it, or be removed from the board.”  This might not only violate the First Amendment, but could result in a course of action where the trustees are not acting in the best interests of the library.  That is a result to avoid.

At the same time, boards MUST feel empowered to remove members who are disruptive, who refuse to engage in the processes of deliberation and voting, who are disrespectful if they don’t get their own way, who improperly disclose confidential information, who have inappropriate relations with patrons or staff, or who violate board policy...so language emphasizing trustees’ responsibilities should be retained, and should be revisited often. 

Clarity about trustee rights and obligations, board training, and procedures creating a high-functioning board are always in the best interests of a library.

Thank you for a great question.  I hope this answer is helpful. 

CLOSING NOTE: At this closing section of the answer, I would like to re-iterate what was established in the first footnote: Although similar, the quoted language in the question does not exactly track the language in the “2018 Handbook for Library Trustees in New York State” nor the “United for Libraries Public Library Trustee Ethics Statement”.  This reply addresses the language as quoted in the question and does not address the precise language in the Handbook nor the Ethics Statement.

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[2] And the year is only half over.

[3] Indian, free association, special district, school district, municipal.

[4] This governance is established through a daisy chain of Education Law sections: 255, 260, 226, and 216-a.

[5] The Education Law carves out several areas where the NFP law does not apply, including provisions related to trustee removal.

[6] Here is a nice summary of some of them: https://www.law.cornell.edu/constitution-conan/amendment-1/government-as-employer-free-expression-generally

[7] Here is a another summary, this time of the “tests”: https://www.law.cornell.edu/constitution-conan/amendment-1/modern-tests-and-standards-vagueness-overbreadth-strict-scrutiny-intermediate-scrutiny-and-effectiveness-of-speech-restrictions

[8] By taking the Oath, a public library trustee has made the sworn commitment to “support the constitution of the United States, and the constitution of the State of New York, and … faithfully discharge the duties of the office of” serving on the board. 

[9] This is a tricky one.  A good “Committee on Open Government” opinion discussing the nuances of this can be found at https://docs.dos.ny.gov/coog/otext/o4258.htm.  Another illustration of the shifting conditions of board service is the discussion in a 2017 NY Commissioner of Education’s decision to not overturn the removal of a school board member who admittedly shared confidential information from an executive session, found here: http://www.counsel.nysed.gov/Decisions/volume57/d17147.

[10] It is worth noting that the phrase “duty of loyalty” does not appear in the Not-for-Profit Corporation Law, but is a creature of case law.

[11] All of these examples were picked to not otherwise be covered by required policies such as Sexual Harassment, Conflict of Interest, Whistleblower, confidentiality of topics duly discussed during Executive Session.

[12] These distinctions may be counter-intuitive to some people used to the operations of not-for-profit boards, which come with a high expectation of service with confidentiality.  A key distinction between library board work and the work of other entities governed by the Not-for-Profit corporation law is that library board work, by law, takes place before the scrutiny of the public.  So, while the “duty of loyalty” held by a typical not-for-profit board member would include not divulging board discussions and board votes, for chartered libraries, this activity takes place with an expectation of disclosure.

[13] To make this assertion, I checked for the phrase “actively working against” in all laws and regulations of New York, and the decisions of the NYS Commissioner of education.  The phrase has no application in any of those contexts, and appears in only six judicial decisions in New York (state and federal), none of which deal with libraries or not-for-profit board service.

 

I had initially considered bundling this question with another submission about temporary actions or policies during COVID-19.  After all, both questions relate to policy, and a big goal of “Ask the Lawyer” is to provide legal information efficiently.

But after drafting that answer, and considering this question further, I did away with that notion.  The member has isolated an incredibly critical concern about employee/employer safety and authority.  It is a question that demands—and deserves—its own consideration.

But before we dive into the legalities, let's consider the practical implications of the member’s question.  Why would an employer want to “exclude vulnerable employees” from the work site? On the flip side, why would an employer want to set policies “requiring” a class of employee termed “non-vulnerable” to return to work?

Near as I can figure, the employer would want to do this to promote safety; a laudable goal.

However, that is not precisely the approach an employer in New York State is empowered to take.

Under both the Americans with Disabilities Act (“ADA”) and the New York Human Rights Law (“HRL”), employers are barred from discriminating against employees on the basis of real or perceived disability. This means that a NY employer who knows—or suspects—an employee might be particularly “vulnerable” (in this case, to COVID-19, but in other cases, due to pregnancy, or other medical conditions), is barred from simply labeling that employee “vulnerable” and taking steps to limit or change the terms of their employment on the basis of that conclusion. 

Rather, disability law is set up to empower employees to identify their needs, and then—under the most confidential circumstances possible—work with their employer to receive reasonable accommodations in consideration of those needs.

For example, a person whose medical history means that they might be more vulnerable to COVID-19 would work with their medical provider to provide documentation setting forth the risks and requesting a reasonable accommodation on the basis of those risks.

Employers are always welcome to let employees know the ways in which they may request accommodations. For instance, as libraries, museums, and archives consider limited or full reopening, employers can transmit those plans to their employees, and invite them to submit any request for accommodations based on the anticipated additional exposure to on-site visitors.

Think of it in the same way your institution might think of planning a large event that would invite the maximum number of people possible to your library or a rented venue. When planning for an event that will attract a large number of people, almost every institution will consider the need to accommodate people who use mobility devices. They might not contact those people in advance, even if they know they're coming…rather, the event will be planned with those accommodations in mind.

A good example of this, of relevance to the current COVID-19 crisis, is an employee with a respiratory disability.  As we know, people who have had respiratory illnesses in the past may be especially vulnerable to COVID-19 now.  These are people who may request accommodations—potentially including the ability to work off-site—based on a disability (a good list of accommodations for respiratory issues can be found here, on the Job Accommodation Network).

So, with all that being said, the answer to the member’s questions (Can they set policies that exclude vulnerable employees from being able to return to work? Can they set policies requiring non-vulnerable employees to return to work?) is: NOT AS SUCH.

However.

Employers can most certainly, when otherwise allowed by law, policy, contract, and Executive Order, require employees to return to work.  After that…

Once an employer is able/decides to re-open, in addition to any re-opening conditions, the employer must consider any requests for reasonable accommodations.  This could absolutely include modifications for those whose disabilities render them vulnerable to COVID-19.  The employer can even generally pre-plan to offer those modifications.  Or they can make working from home, or working on-site, optional (if the work can, in the sole determination of the employer, still be done).  But what they can’t do is pre-sort their employees by “vulnerability.”

There is one final critical point to make here, at this time (May 19, 2020).

Institutions re-opening as part of “NY Forward,” may be required to monitor the health of their employees in a way that typically would seem intrusive, and in some contexts, would even be illegal.

For example, here is a sample of the monitoring required under NY Forward, taken from a sample safety plan.  NOTE: this is taken from the NYForward’s Phase One Retail Summary, and is provided as an example, only:

Employees who are sick should stay home or return home, if they become ill at work.

[Employers must] [i]mplement mandatory health screening assessment (e.g. questionnaire, temperature check) before employees begin work each day and for essential visitors (but not customers), asking about (1) COVID-19 symptoms in past 14 days, (2) positive COVID-19 test in past 14 days, and/or (3) close contact with confirmed or suspected COVID-19 case in past 14 days.

Assessment responses must be reviewed every day and such review must be documented.

Employees who present with COVID-19 symptoms should be sent home to contact their health care provider for medical assessment and COVID-19 testing. If tested positive, employee may only return completing a 14-day quarantine. Employees who present with no symptoms but have tested positive in past 14 days may only return to work after completing a 14-day quarantine.

As stated, this is the procedure for Phase 1 re-opening of limited retail operations.  When will libraries subject to closure in NY be able to re-open under NY Forward, and under what terms?  As I write this, the New York Library Association, NYLA, has this on their COVID-19 page, which states[1]:

With input from our partners from the Public Library System Directors Organization (PULISDO), NYLA has been advocating for libraries to be permissively included in phase two.  This would allow libraries to be a phased re-opening processed, to be determined at the local level, as early as when their region enters Phase Two.  The decision on when, as well as the steps and procedures for re-opening, are best determined locally, and in conjunction with the local library system and county Department of Health.

This is a critical service to association and public libraries by NYLA, and every board and director should be monitoring this site for updates.

Of course, some libraries may have determined that the current workforce restrictions don’t apply to them at all (that they are exempt right along with school districts and local governments).  And it is possible some libraries and museums, affiliated with larger institutions, will not be able to open until their region hits “Phase Four” (covering educational institutions).  And it may be that by the point libraries are given the go-ahead, the emergency has abated to the point where monitoring of employees won’t be required. 

But any library contemplating opening, in addition to being ready to consider ADA accommodations for those more vulnerable to COVID-19, needs to be considering these possible employee monitoring requirements, as well as the need to adopt any NY Forward-required Safety Plan, or similar documentation showing they are taking defined, affirmative steps to protect employee and public safety.

Public and association libraries developing the policies they need to re-open have a large, complex task before them.  Thank you for a question that explores a critical consideration of that work.

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[1] Just to emphasize: NYLA is a critical resource at this time and all libraries should be monitoring this page daily for updates.

 

This question is from a school district public library.  Before answering it, I called the library director who sent it in.

Why?  Well, first, I wanted to introduce myself.  When a question has a lot of nuance and potential long-term ramifications, I like the member to know the answer comes from a real human being, not just a faceless attorney in Buffalo, NY.

Second, I wanted to check in on some details.  As other school district public libraries can attest to, the minutia of elections and budget votes can get very technical—as well as personal (and sometimes passionate). Getting those details right is both an art and a science.

And finally...I'm not gonna lie. Sitting alone in my office, with my treasured staff working from home, cut off from our normal busy but generally cheery atmosphere, I might have been a tad lonely.  Although anyone who works with me will tell you that half the time I am working in an introverted and ADD-infused cloud, four weeks of pandemic isolation have taken their toll. It was nice to call the member and connect at a human level.

How did the conversation go? I'll keep that part confidential.

Let’s take a brief aside to review the “Ask the Lawyer” model.

For members who use “Ask the Lawyer,” there are often two concrete results from the submission of the question:

The most common result is a post to the “Recently Asked Questions” (“RAQ”) site, which will contain generic guidance with no identifying details, so a general assessment of the legal issue can be shared with the largest possible impacted library community.

The second result, which doesn't occur for every question (but it's still pretty frequent) is a “confidential memo” just for the member and their council.  This “confidential memo” supplements the general input with confidential legal advice, and lets us address any unique details that pertain to only that member.

This is how the 3R’s maximize the resources (legal fees) used to get the legal guidance and advice, while also enabling timely services to their members.  And as I’ve reviewed, it is also how lonely attorneys can occasionally arrange a phone call to socialize about a legal need during pandemic-imposed isolation.

So, again…how did the conversation with the member go?  As I said, it’s confidential. But let's just say, when I call a librarian, I expect some good conversation, and this member did not disappoint.

And with that, here is my generic “Recently Asked Questions” input on this situation:

The first priority in assessing any matter related to an election or budget vote is to consider any past extraordinary details—such as a previous controversy or contested procedures.  As they say in the “Music Man”: You gotta know the territory.[1]  If there has been any past issue or hostility, planning to navigate a postponed election with those sensitivities in mind is wise.

Next (and this is essential), is setting up to ensure consistent and well-communicated support about the election from leaders and stakeholders: in this case, the board, the staff, the library’s system, the local school district, and (even if the election is not in their purview) the county Board of Elections.  This includes communication about the postponement, and the re-set proceedings.

Why is this a critical step? When you're sailing into uncharted waters, it's good to sail with a fleet, and to cross-check each other’s navigation.

And finally (but critically), before making any announcements or plans, check your charter, bylaws, and date of formation.  Some libraries will have provisions in them relevant to this situation, and per sub-section 8 of Section 260 of the NY Education Law (controlling school district public library elections), a library chartered before April 30, 1971 may have a bit more leeway in these matters, as a matter of law.  Further, your library may have its own notice requirements or procedures, on top of the base-line legal requirements.

Now, as to the present circumstances, let’s parse the relevant content of Executive Order 202.12:

Circulation, filing, and collection of any designating petitions, or independent nominating petitions for any office that would otherwise be circulated or filed pursuant to the Election Law, Education Law or any other consolidated law for any office commencing March 31, 2020 are hereby postponed.

Any school board, library board, or village election scheduled to take place in April or May of 2020 is hereby postponed until at least June 1, 2020, and subject to further directive as to the timing, location or manner of voting for such elections.

As if this whole exercise isn’t going to be complicated enough, the first thing I need to note is that, under Education Law Section 260 (sub-section 7), school district public libraries have between April 1 to the end of June to hold their elections.  So just be aware: EO 202.13 did not delay all scheduled elections (only those set for “April or May).  So, for this answer, we’ll only address elections set for April or May.

Next, we need to check in not only with Education Law Section 260, but its companion Section 2018, which addresses the filing of petitions:

Each petition shall be filed in the office of the clerk of the district between the hours of nine a.m. and five p.m., not later than the thirtieth day preceding the school meeting or election at which the candidates nominated are to be elected. [emphasis added]

And of course, Education law Section 2004, which requires notice be given:

“…at least forty-five days before said meeting, in two newspapers if there shall be two, or in one newspaper if there shall be but one, having general circulation within such district. But if no newspaper shall then have general circulation therein, the said notice shall be posted in at least twenty of the most public places in said district forty-five days before the time of such meeting.”

So, with all that, what are the answers to the member’s questions?

First question: Do we have to do a legal notice that the vote is postponed and do new legal notices once we have a date?

My assessment is that the Executive Order is sufficient notice that the vote is postposed.  However, once the proceedings can be re-scheduled, a library will need to publish new notices. Further, it is important to note that the EO hints there will be “further directive as to the timing, location or manner of voting for such elections” coming from the Governor (or perhaps guidance from NYSED, upon direction of the Governor).

I imagine such “further directive” will take into account that typically, libraries must give at least 45 days’ notice.  But in any event, right now, school district public library elections are in a holding pattern, and the boards and leadership need to stay alert for further directions on next steps.

That said, a discussion with stakeholders, to ensure your library is ready to set its proceeding when the time comes, might be wise.  This could include a notice about the postponed proceedings, and direction as to where to look for next steps.

Here is a template:

Consistent with Executive Order 202.13, the [NAME] Library’s elections and budget vote are postponed, and the library is awaiting further direction from the state regarding rescheduling.  The Library will publish further notice and information to the public regarding the election as soon as we are able.  Questions about elections in [COUNTY] County can be directed to the [COUNTY] County Board of Elections at (###)###-####.

Second question: Can we reopen the opportunity for people to file a petition to run for the board?

This is fascinating.

The way I see it, 202.13’s “postponement” of elections means the thirty-day deadline for filing a designating petition will automatically be re-set to thirty days before whatever the new election will be.  This is because under Education Law Sections 260(8) and 2018, the deadline for filing is not a fixed date, but a deadline calculated based on the date of the election.  So, I think being ready to ask people to step up and get designated so you have sufficient nominees—especially if there were none duly submitted by the last deadline—is a good idea.

Of course, right now all collection and filing of designating petitions are also “postponed” (see the first excerpted paragraph of the Executive Order).   And the deadlines for petitions are going to be tough to hit before the July 1 statutory deadline. And at some point, there may be a decision that previous submissions will not be re-opened.

The next “directive” on this issue will have to tackle the issue of meeting the notification and petition filing deadlines, as well as the implications for those libraries that were in the notice period, and those that were not.

This is where conferring with the local Board of Elections officials, and the school district, even if they do not oversee your library’s elections, will be so critical.  They will have the insight and probably some inside information to share about how this will be configured.  And for those libraries with a lawyer, this is the time to involve them (before final decisions are made).

To put this in context, right now although critical, the election is probably only one of the numerous high priority issues your library board is considering. First and foremost is likely the on-going well-being of the library and its role in the anticipated recovery of your community.

With that in mind, I suggest any board facing this situation also review the guidance on using a crisis management for public libraries, and factor the monitoring and messaging around this issue into their response plan.

If and when we get an update or “further directives,” we’ll post any update to this answer.

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[1] Has anyone ever done a poll to see how many librarians have been serenaded with the “Marion,” song?  And taken a further poll to see if it is now regarded as harassment?

 

This question is rather like asking an astronautical engineer: When on a spacewalk, are there any safety procedures specifically related to securing my helmet as I exit the airlock? 

Such a question could inspire an initial reaction like:  Safety concerns?  In SPACE???  Blazing comets,[1] the safety concerns start the moment you blast off!

But upon reflecting on the actual question, the calm, composed answer might be: “To ensure integrity of the pressure garment assembly, double-check the neck-dam’s connection to the helmet’s attaching ring.”[2]

Lawyers get this way addressing questions related to children and liability.  Our first reaction is to think about everything that can go wrong.  But then we calm down and focus on the specific issue at hand.

So, here is my calm, composed answer to the member’s very specific question:

There are two potential instances where a public library offering a program for unaccompanied minors might be obligated by law to collect emergency contact information.

FIRST INSTANCE

If the program the library is hosting is a camp required by law to have a “Safety Plan,” applicable regulations arguably require that the library gather the child’s emergency medical treatment and contact information.[3]

SECOND INSTANCE

If the library is paying a child performer as part of an event, the law requires that the library must collect the child performer’s parent/guardian information before the performance.[4]

Other than the above instances, while such a practice may be required by an insurance carrier,[5] a landlord, or event sponsor, there is no state law or regulation that makes collecting emergency contact information a specific requirement of a public library.

I do have two additional considerations, though.

FIRST CONSIDERATION

 “Emergency contact” information provided by the parents/guardians, in a signed document drafted expressly for your library, is generally the best course of action when welcoming groups of unaccompanied minors for events not covered by your library’s usual policies. 

I write this because Murphy’s Law (which is not on the bar exam, but remains a potent force in the world) will ensure the one time there is an incident at your youth program, the district’s automation system will be down.

Which brings us to the….

SECOND CONSIDERATION

Libraries and educational institutions sharing automation systems must make sure that such data exchange does not violate either FERPA (which bars educational institutions from sharing certain student information), or CPLR 4509 (which bars libraries from sharing user information).

Emergency contact information maintained by a school is potentially a FERPA-protected education record.[6]  If FERPA-protected, it is illegal for any third party—such as a public library—to access it unless there is an agreement in place with certain required language AND the library’s use of the information is in the students’ “legitimate educational interests.” [7]

Of course, given the right circumstances, meeting these criteria is perfectly possible.  In fact, such agreements can be a routine part of a school’s operations.   But just like with a space helmet before leaving the airlock, its best to confirm that everything is in place before you take the next step.[8]

Thanks for a thought-provoking question.