Public Libraries

I am sure there is a very interesting set of facts, personal convictions, and conversations behind the stark facts presented in this question (there always is).  But we’ll address just the stark facts.

Because a library’s Code of Ethics, Conflict of Interest Policy, and Whistleblower Policy[1] are rooted in different areas of the law, a refusal to sign these documents creates an array of ramifications. We’ll explore each type in turn.

But first, it’s important to establish certain base factors.

Base Factors

In New York, most libraries (unless they are part of a larger institutions like a college or museum) are not-for-profit corporations chartered by the New York Education Department’s Board of Regents.[2]  This means that, just like other not-for-profit corporations registered with the New York Department of State, libraries are subject to the Not-for-Profit Corporations Law (the “NFPCL”).[3]  This includes school district public libraries.

Without getting too technical, this means that all libraries in New York are governed in accordance with not only their charters and bylaws, but the applicable parts of the Education Law and the NFPCL, too.[4]

This governance structure impacts questions related to conflicts of interest, whistleblowing, and codes of ethics. With the basic features established, let’s look at the different type of policy in the member question.

Conflict of Interest Policy

Here is what the law says about a refusal to participate in the “Conflict of Interest” policy, as governed by the NFPCL:

The conflict of interest policy shall require that prior to the initial election of any director[5], and annually thereafter, such director shall complete, sign and submit to the secretary of the corporation or a designated compliance officer a written statement identifying, to the best of the director’s knowledge, any entity of which such director is an officer, director, trustee, member, owner (either as a sole proprietor or a partner), or employee and with which the corporation has a relationship, and any transaction in which the corporation is a participant and in which the director might have a conflicting interest.[6]

So, to give a stark answer to the member’s question, per the law, no person should actually be elected to serve as a trustee until the nominee’s Conflict of Interest statement (the “COI”) is completed and submitted.  In other words, if the COI is not turned in, that person should never initially be elected as a trustee (we’ll pick that back up in a few paragraphs when we discuss the election criteria for school district public library trustees).

Whistleblower Policy

A requirement to “sign” the Whistleblower Policy is a slightly different matter.  Unlike the law related to conflicts of interest, the law requiring any not-for-profit with over 20 employees (or revenue in excess of one million dollars) to have a Whistleblower Policy[7] does not come with a requirement for trustees to sign any document. 

Of course, a refusal to abide by the Whistleblower Policy (for instance, a trustee failing to keep a report confidential), could result in a violation of the law, and the libraries’ bylaws, as well.

Code of Ethics

Public school boards must have Codes of Ethics,[8] but libraries—even school district public libraries—do not. There is no requirement in the NFPCL, nor the Education Law, nor any applicable regulations, that a public library have such a code.

That said, to clearly express and enforce a library’s values, a Code of Ethics is often built into a library’s bylaws or adopted as a stand-alone policy of a library’s board.[9]   The bylaws, or policy itself, could also require that it be signed.  Once it is a requirement of the bylaws or policy, it does not have the force of law, but it can be enforced by the board.

Refusal to Sign

Which brings us to: whether it a requirement of law or policy, the refusal to sign of a board member must be addressed under the library’s charter, bylaws, and the NFPCPL. 

Under NFPCL §706, a board is empowered to remove a board member per the procedures in its bylaws.  Therefore, if a board determines that failure to sign the Code of Ethics or Whistleblower Policy is unacceptable, or that a failure to sign a Code of Ethics makes the library non-compliant with the law, then that board member can be removed, provided the remaining trustees are careful to follow the bylaw’s procedures for doing so. 

This can be a divisive issue, since I imagine someone could present a debatable reason for not signing a Code or other policy,[10] but since a Code of Ethics or mission statement is something every board member must support as part of their service to the library, the root cause of the refusal might be just as serious as the refusal, and in any event, must be resolved. And that is, except for one wrinkle, the lay of the land.

School District Public Library

At school district public libraries, board members are elected per the requirements of Education Law §260. 

§260, and by reference, §2018 of the Education Law, include very precise conditions for the nomination and election of a school district public library board member—none of which is a pre-vote signature on a COI, or a signed acceptance of a Whistleblower Policy or Code of Ethics.

Of course, per Public Officers Law §10, all school district public library trustees must take and file an oath of office “before he[11] shall be entitled to enter upon the discharge of any of his official duties.” This means, somewhere in the “pre-term” area after the election but before the newly elected trustee starts working, there is a zone where they can, based on a refusal to take the oath of office, not be qualified to start the term.[12]

The consequences of a refusal to sign a COI are a little less well-defined, but it is clear that if a board tolerates a refusal, the organization is not in compliance with the NFPCL.  The refusal to sign a Whistleblower Policy is not controlled by law, but the failure to actually follow it is.  And the failure of a board member to sign a Code of Ethics is a matter to be decided by the rest of the governing board.

What Happens Next?

The refusal to sign and participate in critical board policy cannot simply be ignored.  It has to be addressed, and the rest of the board has to follow the rules as they address it.

Barring any obvious provision in the bylaws or wording in a particular policy, what does the board use as a playbook for dealing with this type of challenge?  Upon confirming the factors leading to the refusal, a board’s executive committee,[13] consulting with the library’s lawyer and working from copies of the charter and bylaws, must consider the facts, could develop a solution.  The solution could be a revision of a policy to address a particular concern, or, in the case of an incomplete COI, removal of the member.  In no event should this be done without the input of an attorney, since the stakes are high, and feelings may be strong.

Thank you for an important question.

Before we get to the nitty-gritty on this question (and we will), let’s reflect on why libraries charge fines and replacement costs in the first place:

• To encourage timely return of materials
• To offset staff time and resources consumed by retrieval efforts
• To replace items when retrieval efforts are ineffective

And always, lurking in the background, is the notion that fines and replacement costs are an alternative to the most under-utilized section of the NYS Education law, the criminal provision in Section 265:

Whoever wilfully detains any book…belonging to any public or incorporated library…shall be punished by a fine of not less than one nor more than twenty-five dollars, or by imprisonment in jail not exceeding six months…..

So far, I have not had a client use their “one phone call” to let me know they have been arrested on an “265,” but the possibility is never far from my mind.

Of course, no one picks a library career to pursue their dream of arresting people who love (and lose) books.  And, although less draconian, I bet no one picks a library career for the joy of assessing late fees.  That said, library materials costs money, and people can be irresponsible about returning items to the library.  So what’s an institution to do?

Some libraries are experimenting with no-fine models[1], since fines can have a disproportionate impact on those in poverty.  Others have great success with routine “amnesty” days and other creative ways to take the sting out of returning books late. And still others want to make sure that the traditional model is as streamlined and legally compliant as possible.  That is what the member’s question is about.

A “bankruptcy discharge policy” is a logical component of a library’s approach to fines, replacement costs, and efforts to collect them.  It addresses the potential “dischargeability” (wiping out) of library fines when a person seeks the protection and “fresh start” created by bankruptcy.  It can also help libraries (and their collection agencies) follow the law, which gives people seeking bankruptcy very specific protections.

Before we address the member’s specific questions about adopting such a policy, it is important to take a moment to reflect on (legal) language.  This is because there is a basis to argue that overdue fines and replacement costs, while valid conditions of having a library card, might not qualify as typical commercial “debts;” this could mean that in many cases, libraries owed fines and replacement moneys might not be precisely “creditors.” This is pointed out in the 1997 case Riebe v. Jeurgensmeyer[2], where the judge writes:

The origin of this federal case is a minor's failure to return a library book. In 1995, Elizabeth Riebe, a minor, borrowed a library book from the St. Charles Public Library ("the Library"). The due date came and went without Ms. Riebe returning it. The Library waited. After Ms. Riebe failed to return the book for six months, the Library retained Defendants [a collection firm] to write to her parents ("Plaintiffs") requesting payment of $ 29.95. 

Addressed to Plaintiffs, the letter, as Plaintiffs see it, implied that they, or their daughter, could be arrested and imprisoned for intentional theft of public library property. Attached to the letter was a copy of the provisions of the Illinois Criminal Code. Rather than paying the $ 29.95 or at least returning the book, and thereby putting the matter to rest, Plaintiffs filed a complaint in federal court, alleging that Defendants' letter violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq.(1996).

In ruling that the FDCPA doesn’t apply to attempts collect library fines (and thus that the library could not be liable for the zeal of their collection agency under the FDCPA) federal Judge Charles R. Norgle (who clearly esteems libraries) wrote:

Here, there was no initial "business dealing" creating an obligation to pay, only an obligation to return a library book. In theory, this may have created some type of contract, but not in the context of a "business dealing" as contemplated by the FDCPA, e.g, the purchase of consumer goods or services. … Rather, the borrowing of a library book is a public privilege that largely depends on trust and the integrity of the borrower. [emphasis added]

Now, the FDCPA is not the Bankruptcy Code, and it is possible that a person seeking relief from debt under the Code and might be able to reduce or completely discharge their fines and replacement charges from a library.  But for over twenty years, Riebe has been cited as good law, so it is possible that this view of library fines and replacement costs as something more fundamental that a business debt could carry over. 

I emphasize this because it means some types of library fines and costs might be dischargeable, but others, since they are not consumer “debt” in the traditional sense, might not.[3]

So, with all that, let’s get to the nitty-gritty:

Are replacement costs for library materials exempt from or subject to discharge of debt? Overdue fines?

Because of the factors cited above, there can be no one-size-fits all answer to this!  It will depend on a few factors.  Under certain circumstances (replacement costs, fines connected to vandalism or wanton theft) the court might rule that what’s owed to the library is not a “dischargeable” debt.  But that might not be the case for the average family declaring bankruptcy because they got swept at the knees due to illness or job loss, and who might have additional hardships to show to the court.  As with many things in bankruptcy, it will depend on the circumstances.

Fees levied in an attempt to recover materials (i.e. collection agency fees)?

I would argue that imposing additional administrative costs for retaining a collection agent risks transforming the library-patron relationship described so well by Judge Norgle in Riebe.  In doing this, the likelihood of the costs being dischargeable increases.  But again, it will depend on the underlying nature of the fine or cost.  Someone who checked out 10 DVD’s on their first week as a cardholder and never returned them might have a tough time proving that the costs aren’t the result of theft (and thus non-dischargeable).

Are we allowed to impose restrictions on borrowers whose debt has been discharged, if they have not returned materials owned by the library? For example, can we deny loans to a borrower until they return library materials, or pay for them, if the debt has been discharged; or can we limit the number of items loaned for a period of time?

Regardless of where your board may fall on its philosophical approach to fines and collections, any time a cardholder declares bankruptcy, all efforts to collect fines or replacement costs should cease.  Critically, this means if borrowing privileges are only suspended due to unpaid fines, borrowing privileges should immediately be reinstated.  On the flip side, suspension due to unreturned materials (for which no replacement cost is being charged) can continue. 

The most important thing, as the member suggests, is to respect the process when your library is notified of it. Any library, or agent of a library, who gets a notice that a cardholder is filing bankruptcy should cease all financially-related sanctions.  If there are extenuating circumstances (let’s say the amount owed is related to an act of vandalism, or failure to return 50 full-color art books) refer the matter to library’s attorney, or alert the bankruptcy trustee, who might contest discharge under the precise factors of the bankruptcy code.

With all that in mind, I suggest some alternative language for a policy, which would addresses both the human aspect of bankruptcy, and some of these subtleties:

Bankruptcy Discharge Policy

The Library understands that sometimes people must seek relief from debt in bankruptcy and are entitled to a “fresh start” after such relief is obtained.

Procedure

Cardholders seeking a discharge in bankruptcy of moneys owed to the library should notify the library of having filed for bankruptcy.

Once the library is properly notified that a bankruptcy has been filed, the library and/or its agent will immediately cease contacting the cardholder about the financial amount(s) owed. 

The library shall then evaluate its response to the notice.  In making such an evaluation, the nature of the conduct leading to any fines, costs, and suspended privileges will be considered.  In particular, but not exclusively, the discharge of any costs related to wanton destruction or significant failure to return borrowed items may be contested.

After notice of filing, but prior to discharge, if borrowing privileges are suspended solely on the basis of unpaid fines and replacement costs, borrowing privileges will be immediately reinstated; borrowing privileges suspended on the basis of unreturned items, for which no replacement cost is sought, will remain suspended.

To ensure all charges are listed on the bankruptcy schedule, the cardholder or their attorney may contact the library to request a statement of account at any time; such contact must be in writing so there is no risk of the library appearing to have violated the bar on collection activity.  An attorney or trustee requesting this information on behalf of the cardholder must include permission from the cardholder as required by CPLR 4509.

The library supports that people seeking relief in bankruptcy are entitled to a “fresh start” after the discharge of debt(s).  Upon presentation of a “Discharge of Debtor” listing the library, all moneys owing shall be removed from the cardholder’s record, up to the date of discharge, for the cardholder and any minor children in the family. 

Further, if replacement costs are discharged, the library will not regard the failure to return the corresponding item as a basis to bar reinstatement of borrowing privileges.

Late returns or losses after the date of discharge will be subject to routine policies, including fines and suspension of borrowing privileges.

This approach both maximizes the potential for a bankruptcy discharge to be the compassionate re-set of the cardholder’s account it is intended to be…while taking into consideration that not all charges might be worthy of discharge (which is up to the bankruptcy court to decide).

Thank you for this careful question.

 

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[1] A topic discussed in an interesting TED talk by librarian Dawn Wacek.

[2] United States District Court for the Northern District of Illinois, Eastern Division, October 31, 1997.

[3] The member’s question states that the library is a “government entity,” an assertion that is potentially relevant under the Bankruptcy code.  Without making this response pages longer, I will simply state that I don’t believe a public library has quite the same status governmental entities do under the Bankruptcy Code; however, as shown in Riebe, libraries can occupy a unique position that should inform their approach to this issue.

 

When considering how to address concerns about registered sex offenders using the library, there are several factors that must be considered at once:

Factor 1: Civil rights

In New York it is against the law to take adverse action against someone simply because of a past conviction, including a conviction leading to them being a registered sex offender. Therefore, preemptive action barring or restricting a library user with that type of criminal record cannot be taken.

That said, if a person has limits on where they can go as a result of sentencing or parole conditions, and those terms are violated, that is a different matter, and such violation should be immediately reported to the appropriate authority as deemed best by the leadership of the library.  So long as the report is in furtherance of library priorities, this is consistent with the legal requirement that library records be kept confidential.

Factor 2: Safety

New York State created the Sex Offender Registry tool to enable communities' awareness of past convictions so they have the information to take allowable actions to protect themselves.  If a library or another organization open to the public with specific areas and programming for children and vulnerable populations believes there is a person who may abuse or exploit those populations (whether they are a convicted sex offender, a person known to have committed another type of crime, or are just a creeper acting inappropriately), a safety plan should be developed (or enhanced).

This safety plan should include having clear policies regarding unaccompanied minors in the library, clear signage setting the terms and rules for different rooms and sections in the library, adequate staffing and security measures to ensure all areas of the library are routinely visited or monitored, a clear protocol for recording incidents and sharing concerns (coordinated with the Code of Conduct), well-defined relationships with local law enforcement to ensure there is a known resource in case the library has concerns, and adequate training for employees so they can recognize and have rehearsed responses to situations that may pose a safety risk, including but not limited to actions by registered sex offenders.

Factor 3: Long-Range Planning

For many libraries with older or nook-and-cranny facilities, or with small budgets, the full use of all the safety plan features I list above are not immediately achievable.  For this reason, long-range plans should include these items so they can be budgeted and planned for.

Factor 4: Coping with Fear

Aside from empowering people to take whatever precautions they are allowed to use if they live or work near someone on the Registry, the Registry creates a lot of fear.  While information can be powerful, fear can be toxic.  For a library facing the scenario in the question, review current the safety plan, identify enhancements that can help employees feel confident about using it, and discuss the way in which the library will honor the civil rights of the patron, while taking policy-driven precautions.

And, returning to the specific question: if the knowledge of a person's past record is posing a concern to certain members of the staff, leadership needs to assess and confirm how it will interface with that patron.  While denying services simply on the basis of a previous conviction is not allowed, there is nothing that says there can't be a protocol that certain patrons are never assisted one-on-one – so long as the library has adequate staffing to ensure that such a policy never leads to denial of service.

NOTE: It is quite possible that an employee with past trauma may experience significant difficulty serving a known registered sex offender.  If a person has anxiety, depression, or another disability impacted by serving a certain type of patron, that should be assessed promptly as a disability accommodation request.

I am writing this on May 23, 2023. 

It has been well over a year since I started working with school district libraries and regional BOCES on the ethics, law, and policy considerations of school library collection concerns.[1]

In that time, I have worked with many on the front lines of this issue, and heard their stories: librarians worried their school's policies aren't up to the challenge, librarians enduring insults and threats, and librarians developing contingency plans for the day when the anger is directed at their school library.

The sessions I have worked on have focused on different ways to be prepared: 

• Be certain of your ethics
• Know the laws that pertain to your library
• Know your district's procedures
• If necessary, update your district's policies
• Build a team that is ready to respond
• Have a plan for that team so they work seamlessly
• Memorize an "elevator speech" on intellectual freedom
• Keep calm.

The member's question addresses a factor that cuts across every facet of preparation: be ready to play offense. 

To reiterate, the member asks: [Do] school librarians facing these kinds of accusations have any recourse to bring action against the organization or individuals within the organization making these kinds of possibly slanderous and libelous accusations[?]

The answer is: YES.

Some of the more possible legal tactics are listed below, along with tips on when a librarian should reach out to their own personal lawyer.

A few disclaimers, and tips for being ready to employ these possible tactics, come next.

Possible Legal Tactics

If a school librarian is wrongly accused of a crime, or of incompetence at their job, that can be grounds for a claim of defamation (slander or libel, depending on how expressed).

If a school librarian is subjected to acts which alarm or seriously annoy them, and serve no legitimate purpose, there can be grounds for a harassment claim and protective order.

If social media is used to attack a librarian's character, or to abuse or stalk them, there can be grounds for account suspension and other remedies.

If a school librarian is subjected to abusive or negative comments regarding gender, sexual orientation, race, or religion that create a hostile environment, and after a complaint, nothing is done to stop the behavior, it can be a violation of the New York Human Rights law and federal civil rights laws.

If a school librarian is subjected to a coordinated attack by a registered charitable organization or PAC in violation of formation documents or state/federal law, the organization's actions can be reported to the Attorney General or other regulatory authority.[2]

If a school librarians' image is used to raise funds and/or to agitate people into donating money or for other commercial purposes, there can be grounds for a case based on misuse of the librarian's right to personality.

If a school librarian is subject to abuse or conduct that leads to stress-induced workplace injury, they can bring a claim for worker's compensation.

If a school librarian raises concerns regarding harassment, abuse and safety, and is subject to retaliation for raising such concerns, such retaliation could be the basis of a claim based on violation of state and/or federal labor law.

If a school librarian's employment is threatened or ended due to wrongful accusations, the wrongful accusations can be addressed via a combination of legal claims.[3]

For every possible "cause of action" (the items in bold) listed above, there is a precise formula, deadline, and basis for damages that will require careful analysis of the facts.  For this reason, obtaining timely and competent legal advice is essential.

 

A Disclaimer

Every one of the above-listed "causes of action"--and more--can be used to fight abuse and harassment based on performance of a school librarian's work...if the right elements are present.  That said, make no mistake: 

• A person or group who thinks a particular book shouldn't be in a library has a right to state their opinion;
• A person or group who thinks a particular book is harmful may have a right to use policy and procedure to challenge that book within a library's catalog;
• A person or group who has a bona fide belief they have witnessed criminal behavior has a right to report it.

This is the United States of America, and we are in the mighty State of New York.  If a person wants to say they don't like a book--and even if they want to say they don't like that pesky librarian--they get to say that.[4]

That said, a person who uses their voice and power to defame, harass, threaten, and injure[5] a school librarian may have to face the consequences.

Being Ready to Bring Consequences

To assess if advocacy or self-expression by a person or group protesting books in the library crosses a line, a school librarian should seek the opinion of an attorney.[6]

This attorney does not need to be an expert in First Amendment jurisprudence, Labor Law, or Education Law...but should have some experience in handling significant matters related to the tactic being explored (or at least a willingness to roll up their sleeves and do serious research[7]), and be ready to assess the full facts of what the librarian is dealing with. 

What does this assessment look like? School librarians, once you retain an attorney through a written retainer agreement,[8] be ready for that attorney to have to spend up to ten or more hours gathering information, researching, and developing an array of options.[9]  The lawyer should review the policies and procedures that create the playing field for the drama unfolding before deciding on a course of action[10] (assessing the viability of legal claims should not be a hasty exercise).  And when the initial assessment is complete, expect a written opinion setting out their options, so you can make an informed decision before the attorney takes any action.[11]

In addition to exploring claims a school librarian can bring, some of the above-listed items are relief the employer may be obligated to bring...meaning the librarian's lawyer should be ready to articulate the strong "expectation"[12] that the school or district will go to bat to protect the rights and safety of their employee.  A district or school does not need to stand idly by when its librarian is under attack--and in many cases, the options listed above are available to the school, as well as the librarian.

Whenever possible, the fight for intellectual freedom is not a battle to wage alone!

Which brings us back to our other tactics:

• Be certain of your ethics
• Know the laws that pertain to your library
• Know your district's procedures
• If necessary, update your district's policies
• Build a team that is ready to respond
• Have a plan for that team so they work seamlessly
• Memorize an "elevator speech" on intellectual freedom
• Keep calm.

All of these can help if the legal tactics above need to be utilized. All of these can help if you need to decide that the best defense might be an offense. 

So: [Do] school librarians facing these kinds of accusations have any recourse...?

You bet they do.

Thank you for an excellent question.

 

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[1] Presentations include: Wayne-Finger Lakes BOCES on March 2, 2022; Southern Adirondack Library System on March 11, 2022; Monroe County Library System on March 21, 2022.  Many thanks to the school district library system directors who invited me into their space for these events, and many thanks to the school librarians for their courage and commitment during difficult times.

[2] Such as the Internal Revenue Service.

[3] "Combination of claims" is my catch-all for a contract violation, policy violation, union grievance, random legal violation, etc.

[4] The First Amendment: "Making no one happy since 1791."  Ah, democracy.

[5] "Injure" in the legal sense, meaning a "tort," not just a physical injury.

[6] By this, I don't mean the district's attorney, or even the local BOCES attorney (although they should be helpful, too).  By this, I mean an attorney who is 100% only concerned with the rights and interests of that particular librarian.  To find that attorney, contact your area's local bar association, or ask for a referral from a trusted attorney who practices in another area of law (attorneys like to refer people to other attorneys who can provide good assistance).  If you are worried about costs, see footnote #10.

[7] Did you find a newbie?  My advice is to never write off any attorney willing to admit they don't have extensive experience IF they are willing to connect with a mentor and/or do the research to develop experience in a particular area or law.  Just make sure they don't charge you too much for learning on the job!

[8] Yes: a written retainer agreement.  Not informal advice from your cousin the lawyer, or a third-year law student, but someone with malpractice insurance who gives you a WRITTEN opinion you can rely on.

[9] For example, the attorney for a school librarian being bullied on social media should assess: 1) is this something the school district's attorney should handle? 2) Is there a union that should be fighting for the librarian? 3) Is there relevant school policy that should be enforced? 4) Are the issues causing or contributing to harassment, abuse, threats, or a medical condition? 5) Is social media a factor?  --Just to name a few.

[10] This part sounds boring, but it is vital.  For an example of how such tactical considerations coalesce, see https://pen.org/wp-content/uploads/2023/05/1-Complaint.pdf.

[11] As I have written before, if you are a librarian concerned that a right to read issue could impact their job, and those hours of attorney work are unaffordable, contact the Merritt Fund.

[12] Did I say "expectation?" I mean "clearly written demand."

Libraries likely do not have any statute of limitations for collecting overdue or replacement fines because the law does not consider library fines as “debts.” As such, any change to how long a “debt” may be collected does not matter for libraries. This privilege extends to third parties who collect fines on behalf of libraries. Let’s dive in deeper to help understand why.

In February of 2019, a different WNYLRC member had a question regarding libraries and patron bankruptcy. Part of that answer addressed whether bankruptcy discharged replacement and overdue fines due to the library. We advised the member that it was likely that overdue and replacement fines would not be discharged in bankruptcy because libraries do not engage in the types of “business dealings” that can create a “debt” in the first place. That answer was taking case law on debt collection and applying it to the bankruptcy context. Here, the same case law is much more directly applicable. Understanding the full picture, however, requires a step back to examine why these Federal cases are relevant to interpreting a recent New York State law.

In 2022, New York’s Consumer Credit Fairness Act (“CCFA”) went into effect. One of the provisions of the CCFA was reduction in the statute of limitations, from six to three years, for most types of consumer debt. The types of transactions the CCFA applies to are “consumer credit transactions.” That term is defined as “a transaction wherein credit is extended to an individual and the money, property, or service which is the subject of the transaction is primarily for personal, family or household purposes.”

There is no case law or official guidance in New York that directly addresses libraries. There are, however, interpretations of federal statutes, such as the Fair Debt Collection Practices Act (“FDCPA”), which use nearly identical terms to the New York statute. Under the FDCPA, a “debt” is defined as “[a]ny obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes.” Almost identical to New York’s definition under the CCFA. Given these similarities, and that most state debt-collection statutes are modeled on the analogous federal statutes, looking at federal interpretations is persuasive.

Tierney v. Unique is a 2018 federal case originating in South Carolina. There, a collection agency attempting to collect library fines on behalf of a library in Charleston was sued under the FDCPA. The court ruled in favor of the collection agency, holding that

“Plaintiff has failed to allege a proper claim, as he has not sufficiently pled that he has been the object of collection activity arising from ‘consumer debt.’ The borrowing of library materials, and the failure to return or timely return them which results in library fines, does not constitute such a ‘consumer debt.’”

Notably, in Tierney, the library had added an administrative cost to the fines to offset the expense and having to offload the collection’s effort to a third party. This did not seem to affect the judge’s decision. Tierney also cited a 1997 case from the Northern District of Illinois which provided a full explanation of why library fines are different from consumer debt and credit transactions. This is the case we previously explored in the bankruptcy context. In Riebe v. Juergensmeyer, the Court wrote that 

“we agree with Defendants’ assertion that “public libraries do not engage in business transactions with patrons -- they lend public property to patrons, free of charge.” . . . A library is not a center of commerce but rather a “place dedicated to quiet, to knowledge, and to beauty,” and “a place to test or expand ideas . . . .” . . . Moreover, “an adequate library is essential for the dissemination of knowledge.” . . . “Its very purpose is to aid in the acquisition of knowledge through reading, writing and quiet contemplation.” . . . Unfortunately, when one fails to return library materials, he frustrates this purpose by depriving the public the full-use of the tremendous resources that a library has to offer. . . Consequently, the court finds that the borrowing of a library book is not the type of conduct that the FDCPA considers a transaction. As such, the ensuing obligation to pay for failure to return the book did not create a “debt” under the FDCPA.”

The takeaway is this: Libraries probably do not have any statute of limitations whatsoever for overdue and replacement fines—whether collected on their own behalf or sold to collection agencies. There are some limitations. For instance, if the library charges an upfront fee for a DVD—that could be outside the scope. For run-of-the-mill overdue and replacement fines, however, courts seem to say that libraries are free to collect such fines by whatever means and by whatever timeline they see fit. Since most library fines are not “debt,” the statutes of limitations that apply to “debt” are simply inapplicable.

There are two caveats to this answer. First, this reasoning likely applies to commonplace overdue and replacement fines, but not necessarily to every conceivable fine that may be imposed. As such, your library may wish to check its fine/fee/replacement policies and its collection contracts with collectors, to ensure they do not unknowingly create an enforcement limit where it would otherwise not apply. Members who want to ensure their specific policies and contracts do not create limits should confer with their attorneys for a written opinion.

Second, the fact that a certain action is legal does not mean that it is the right course of action for a particular library. Having libraries as a “free” resource has always been a goal in New York – and the Education Law which establishes the legal footing for libraries expressly states as such. In order to further this goal, some libraries have chosen to move towards a “fine-free” model. A recent article in the American Library Association delves into why this model may be becoming more common. That being said, every library is different, and fines may play a bigger or smaller role in maintaining core services. Any decision about fines and how aggressively to pursue them is ultimately a balancing act that each library must decide for themselves.

This has been a tough question to mull over!  That is because the answer is superficially “yes,” but in reality: “no.”

How do we get to this disjointed conclusion?  Schedule MI-1, as the member did, is a great place to start.

From there, although it is a bit older (in Internet years), the 2010 guidance from the New York State Archives, “Developing a Policy for Managing E-mail” (to which the Schedule MI-1 refers), speaks to this issue.  On page 7, it states:

“Another management strategy has been to rely on the “low­tech” method of printing out important emails to integrate them into a paper recordkeeping system. Printing emails is still a viable option for a small organization with limited technology support and finances, provided that individuals across the organization consistently apply records retention requirements to the printed emails, capture all essential metadata, and file the emails with their respective attachments.” [emphasis added]

This would suggest that, for certain institutions, under certain circumstances, e-mail does not need to be retained in its original form to be an “original document.”

However, while it would be elegant, I cannot endorse this approach.  As the guidance further states on page 13:

“The concept of “official copy” is problematic when dealing with email because of the volume of emails, the difficulty of controlling all copies, and the occasional need to prove an email was received as well as sent.” [emphasis added]

Since 2010, even more concerns make this a dubious solution. For a private institution, the requirements of accreditors, insurance carriers, and other stakeholders must be considered…while for libraries and archives that are part of local governments, per NYS regulation, the conversion of archival electronic records must be conducted in consultation with the State Archives, who may or may not endorse such a policy, based on the categories of documentation it would impact.

That said, for certain categories of documentation transmitted or received as e-mail (as defined by MI-1 or private policy), the “print approach” may work.  As a wholesale solution, however, it is not legally viable.

I won't tease the readers here; generally,[1] the answer is "no."

There are three reasons for this:

Reason 1: a public library director, unlike a library system treasurer and other local "public officers" isn't required by law to carry a bond.

Reason 2: If a public library has the right fiscal controls in place (meaning the director is never solely entrusted with fiscal authority--something that should never happen), there should be little risk of the type "bonding" is designed to mitigate.[2]

Reason 3: the majority of alleged wrong-doing by a public library director should be covered by a library's "Directors and Officers" and "General Liability" Insurance.

For this reason, while "bonding" is not required for most public library directors, a library having adequate insurance is critical.

This is why understanding the scope and costs of a library's "Directors & Officers Insurance," as well as its "General Liability" and "Premises Liability" policies, are critical annual tasks for a library board.

This type of assessment should happen every year with enough time to make sure the library can arrange new coverage if the answers are inadequate or the rates aren’t that competitive (no less than four months before renewal).

Questions to ask the broker should be based on a board's assessment of "what could go wrong?", and can include things such as:

Does our policy cover claims of discrimination, including sexual harassment?

Does our policy cover employee theft?

Does our policy cover alleged copyright and trademark infringement (or "advertising injury")?

Does our policy cover data breach of computers controlled by the library?[3]

What types of claims are excluded?[4]

What is the deductible?[5]

What is the process for reporting possible claims?

Insurance matters are complex and assessing coverage can present a lot of legal and industry jargon.

So, as a primer on the interrelationships and differences in "library world” between 'bonding," "insuring," "indemnifying," "hold harmless" and "Directors and Officers insurance" here is a short poem:

Library bonding, insurance, indemnifications...

What the heck are the differentiations?

Although the distinctions could fill a tome

Here are four rhymes to bring it home:

Director, officer, trustee...

should be insured against liability;

For anyone who with responsibility

The coverage can offer indemnity.

If your library will undertake construction

A performance bond should guarantee completion.

If you need to raise some building money

An approved "bond" can bring the honey.

For a library system treasurer[6]

An "undertaking" you must procure.

For all of these, routine review

Is something that a board should do.

---

[1] There is always an exception to what is "generally" true in the law.  For instance, a large library that puts additional fiscal responsibility on the library's executive director could require such a thing.  But that would be the exception...to find out why, keep reading.

[2] What is "bonding" you ask?  I have a short poem for you (see below).

[3] Many times, it is the cooperative library system's computers that need this coverage...an arrangement that varies from system to system in New York.

[4] This is a critical consideration!

[5] This one is important!  If you have a $75,000.00 deductible, for many claims, you might as well not have coverage.

[6] Actual requirement for a treasurer of a cooperative library system is: "Before entering upon his duties, such treasurer shall execute and file with the trustees an official undertaking in such sum and with such sureties as the board shall direct and approve. The treasurer need not be a member of such board."