Policy

I am sure many a wonderful friendship has been launched at a public library, but for this question, we’ll assume that each of the reported incidents were unwelcome.[1]

To best address this matter and limit liability, the unwelcome nature of the behavior—and the Library’s response—should be documented every step of the way.

For example, the initial report of the first instance can be: Patron A reported that Patron B arrived at their house at ADDRESS on DATE/TIME uninvited to follow up on a conversation at the library on DATE/TIME. Patron A does not welcome this conduct and would like it to not recur.

Because the interaction started at the Library and was related to library services, it is appropriate to respond to this as a Code of Conduct matter, and document it as such.

The follow-up with the offending patron could then be:

Dear Patron B,

The library has received a complaint that on DATE, you sought to continue a conversation at the circulation desk of the library by arriving uninvited at another patron’s home.

If you were invited or did not visit at all, please send us a written response confirming that.

Otherwise: a copy of the Library’s Code of Conduct accompanies this letter. Please take care to not continue Library service interactions in a manner that is not welcome by that person, as it could be considered a violation of the Code.

NAME, you are a valued patron at the library, and we trust this will not be an ongoing concern.

Sincerely,

Library Director

The letter can be reviewed in person with the offending patron or sent by mail or email; that is at the discretion of the Director. The important things are accuracy and timeliness.[2]

It is also important to double-back to the impacted patron and let the know the matter has been addressed. Sample text for that is:

Dear Patron A,

Thank you for sharing your concern about an uninvited visit at your residence by a fellow library patron following an interaction at the library. Please know that the Library has alerted the other patron that such behavior is not consistent with the library’s Code of Conduct. In the event further concerns occur, please let me know immediately.

Sincerely,

Library Director

When a library director has to address this type of thing, they should be aware that such behavior can have many motivations. Some motivations may be malevolent, but others may be worthy of compassion, including loneliness or uncertainty about social boundaries. When it comes to documenting and handling the report, however, the motivation is irrelevant; the goal is to outline the behavior, the rule it violates, and explain the consequences for recurrence.

This type of documentation serves multiple purposes in the legal world.

First, it unambiguously documents the date and time of the occurrence and a key element: that the visit was unwelcome.

Second, that clarity enables a clear articulation of the rules and possible consequences.

Third, it documents that the library has done all it is empowered to do to address this situation. After all, a public library is not law enforcement; it can enforce its own Code of Conduct but cannot police the external activities of others. In fact, a library that tells patrons not to go to places outside the library, at the risk of losing library access, may be violating the First Amendment. Quite the legal tightrope for a library director to walk![3]

Having outlined all this, I will now answer the member’s actual question:

Our question is if the Library would hold any responsibility or liability if anything were to happen based on a conversation that happened at the library but the actions of follow through occurred off library property?

The answer to that will almost always be “No.” Exceptions are:

• If the library provided the personal information that enabled the visit;[4]
• If the victim was an employee;[5] or
• If the activity is part of a larger issue currently under investigation by law enforcement (stalking, harassment, domestic violence, protective order in place, etc.).

When the above legal aspects are involved, a public library is wise to timely consult an attorney to document and determine next steps.

Other than the legal risks, the other big risk in this matter would be reputational: if an incident occurred, the subsequent investigation found out that there had been multiple reported concerns (as is posed by the question), and the library had done nothing, it could negatively affect how the library is regarded by the community.

But again, a public library is not law enforcement; other than barring access to the library, it has limited ability to punish or prevent crime.[6]

So, with all that, the big takeaways for this question are: 

• All patron complaints related to safety and access should be documented;
• All incidents relating to safety or access should be addressed so the library is positioned to restrict the access of the offender;
• Any person facing loss of library access due to a Code of Conduct violation should receive a written notice and a chance to refute the accusation;
• When legal liability or a risk to safety is involved, it is wise for a library director and/or board bring in back-up.

When a director meets with such a person (who might not have quite the same view of the world as the director), it is wise to have a person there as a notetaker and for safety.

Thank you for an important question.

Before I dive right into the answers (we are going to address every question), let me say what a lot of readers are probably thinking: most tech-savvy people know how to modify their phone so a recording they made doesn’t show up in their files. So, this answer will not only review the questions about sensitivity and liability but also discuss the practical concerns of enforcing a Code of Conduct when a decision turns on dubious evidence.

First, let’s talk about a policy on recording.

Any public library should feel confident adopting a policy limiting use of recording devices in areas where privacy of library users is assured.

For some libraries, this rule may be limited to the service desks and common rooms where people are reading, using computers, and accessing other specific library services and programs. For others, this rule may apply to the entire interior of the library.

Some libraries may even want to bar recording in their parking lot and grounds (a factor relevant to the member’s questions), but this may be harder to justify on the basis of privacy, as there is no guarantee of privacy when walking out in the open.

So, for argument’s sake, let’s say the member’s library does have a policy, but it doesn’t extend to the outside. What else could help with the situation presented here?

In addition to a policy on recording in the library,[1] any library can use its code of conduct to prohibit the deliberate antagonism[2] of one person by another on library property.

Once a person reports such a violation, it is up to the director of the library (or librarian in charge) to ensure the policy for evaluating a code of conduct violation is followed.

Library codes of conduct vary from place to place, but a good policy will always follow this pattern: notify the person of the accusation in writing, let them know the penalty that could be imposed, and provide a reasonable opportunity for the person to respond prior to that penalty starting. If the matter involves a very clear risk to safety or compliance (a physical threat, sexual harassment, etc.), the person can also be temporarily barred from the library while the matter is pending, if the policy allows it. After a decision is made, there should be one level of appeal (usually to the board of trustees after a decision by the library director, but in a larger organization, the final appeal can be to the director after a decision by another employee).

If the matter is being handled by law enforcement, the library should still follow its own policy before removing library access and privileges (this is true even if there is an order or protection put in place).

When the accused person is a minor, that person’s parent or guardian should be notified to the degree consented to by the minor (possibly as part of getting a library card) or as stated by the policy.

If, after being accused in writing, a person volunteers to “prove” their innocence by showing their phone, the library should consider if the risk of intrusiveness[3] is worth it; likely it is not. Far better is to hear from the complaining person and the accused person a recital of what happened, decide what is most likely to have happened, and if a violation did occur, decide what penalty will help create assurance of respect and safety going forward.

This is particularly true in a case like this, where unless some other aspect makes the recording harmful (Has it been shared on social media?[4] Was the person being bullied at the time?), the consequences for doing what the youth was accused of will likely be a warning.

How would this “due process” roll out? After getting the complaint, it would start with a letter stating:

On DATE, a library user reported that she was concerned that you were recording her on library property (outside, at TIME), after she requested not to be recorded. If this happened, this is against the Library’s Code of Conduct, which prohibits INSERT.

The Library will be reviewing this report, and we invite you and your parent/guardian to provide a statement in response. You may also come in at DATE/TIME to discuss this with me.

Because it is important for library users to feel safe and respected at the library, if this did occur, it may result in a warning, or a temporary loss of library privileges. If we impose a temporary loss of privileges, you will be able to appeal it before it goes into effect.

Although the situation in the member’s question does not require it, if a reported violation is more serious (a threat, an injury, property damage, etc.), here is the language for a temporary bar on access to the premises:

Because this report relates to [a threat to safety, serious injury, etc.], until this is resolved, you are barred from library premises. You may still use library services remotely. If you need assistance to arrange services remotely, please call NUMBER to work with POSITION[5] or e-mail PERSON.

Taking this careful, deliberate approach does more than assure due process; it also slows things down and gives an accused person and their accuser time to think. It makes sure both parties can be heard. If the people involved are minors, it provides adequate notice and opportunity for parents and guardians to be involved.

Just as important: it is gentler on library workers, who should not have to serve as the sudden judge and jury of disputes between patrons (but of course, often do).

This brings things full circle to the original question: Is the library at risk if a teen patron volunteers to share contents of a cell phone?

The answer to that is YES. That risk includes everything from the simple optics of invading the privacy of a minor to compromising their rights without their parent or guardian present. It is a situation that begs for a formal complaint to a board and/or for public relations fallout. When you consider that the evidence to be provided is probably of dubious value, these risks completely undermine the worth of such access.[6]

While it can take more time, addressing things in a calm, formal manner can teach people (particularly young people) that they have rights. For certain disputes,[7] if the library identifies a way to mediate the issue[8] and help the young library users reconcile their differences, that is fine, too.

Thank you for a thoughtful array of questions.

When advising on a policy or set of terms for a library or library system to adopt for children’s library cards, I ask for the following information:

• What are the key objectives of offering a child their own card at your library or library system?
• Does your library need to enforce fines and/or replacement fees?
• Is there anything accessible via an “adult” card that your library would not offer access to via a “youth” card?
• How does your library like to work with parents and guardians?
• Does the card enable more than borrowing materials from the library? (Is it used for computer access, printing, maker space, etc.?)

I ask these questions because in New York State, children can’t enter enforceable contracts, which makes it hard to collect fines and fees. In addition, a lot of the tomfoolery that can lead to a kid losing library privileges can be more easily addressed if the library is in a position to contact that kid’s parent or guardian, but since library records are confidential, the only way to share the information is with informed consent.

“Informed consent” means that when a person signs up for a card, they are informed of the terms (like their parent being a co-signer who is responsible for their replacement fees), and they expressly consent to them.[1]

With that all out there, let’s tackle the member’s questions, starting with the practice of requiring parents/guardians to sign their child’s agreement for a library card.

QUESTION: Is the signature to allow for “parent permission” to access the library?

ANSWER: No, unless the library’s policy[2] sets things up this way. There is no default federal or state law that expressly denies minors access to a NYSED-registered public library.

QUESTION: Are public libraries legally obligated to obtain parent permission before a child of a certain age accesses library materials or services?

ANSWER: There is no default federal or state law that expressly denies public library access to minors.

CAVEAT: Local laws are often oddly specific (and outdated, and unconstitutional) on things like this, so it is possible a local law could require parental consent to get a library card. Whether such a local law would stand up to a legal test is another matter.[3]

QUESTION: I’m assuming that the library would not be liable if, for example, staff allowed an 11-year-old without a library card to read any book they liked within the walls of the library?

ANSWER: “Liability” is a broad word; it covers both criminal and civil (including financial) liability. But if a library is providing an eleven-year-old with access to library materials that were acquired, cataloged, and accessed per library policy, your assumption is correct: there should be no liability.

QUESTION: Does this apply to a child of any age? (I realize unaccompanied minors will eventually come into play).

ANSWER: Yes, regardless of age, there should be no liability for providing access as allowed by the Education Law and library policy.

That said, the younger the child, the more the law will expect that library policy is being used to not create an active hazard. But as the question alludes to, there is a difference between toddlers running amok in the Rare Books room creating physical havoc and a child of any age accessing a print or online copy of American Lion (a Pulitzer Prize-winning book that discusses genocide, slavery, and violence, because it is about the presidency of Andrew Jackson)[4]. One is a physical hazard and a property risk; the other is a simple exercise of the right to read.

QUESTION: So, by extension, is granting an 11-year-old a library card without parent consent legally permissible?

ANSWER: I wouldn’t say “by extension” because that implies an argument needs to be made to provide library privileges to minors. There is NO requirement for parent/guardian consent for a library card unless the library has included it in their own policy (or an oddball local law requires it, which should probably be challenged).

QUESTION: Is the signature [of a parent] an acknowledgement of responsibility for the library materials on behalf of the child?

ANSWER: In and of itself, the signature is simply proof that the adult signing the card agreement accepts whatever terms are in the agreement. So, as reviewed above, if the library or library system issuing the card has made an adult’s acknowledgement of their responsibility a conditions of their child getting a card, then yes.

Along with that accountability, the signature of the parent, along with the informed consent of the child, can be used to put in place things like:

• Sharing a child’s library records with a parent (being able to answer the question “What books does my kid have out? I have to help him return them.”)
• Sharing a child’s fine/replacement fee information with a guardian (being able to answer the question “My granddaughter shoveled the walk yesterday so I would pay for the book she lost. How much is it?”)
• Disclosing and discussing loss of privileges/access (being able to say “As you know, your child doesn’t have computer privileges right now, because he put gum in the all the ports. We look forward to him being back at the keyboard in six months.”)

Many library card applications prompt for this specifically, but according to NYS law, is a parent/guardian responsible for library materials checked out to a minor in their care regardless?

ANSWER: No, except for in cases of extreme intentional damage, where General Obligations Law 3-112 might create that civil (not criminal) liability.[5]

That said, there could be a rogue local law out there. New York is a big place with many odd local laws on the books.

QUESTION: If a 15-year-old minor lost library materials or incurred fines or fees, would their parents still be legally responsible even without giving permission for the card?

ANSWER: No (and not even if they gave permission for the card, unless they also took accountability for fees); the sole exception to that is if the money was due to damage so extreme that a claim could be made under General Obligations Law 3-112.

QUESTION: COPPA and the collection of PII (for online library card signup). Though not required as a non-profit, our library chooses to comply with this policy, requiring parent/guardian consent of online card signup for children 12 and under. Does this mean that a child aged 11 could still, within legal boundaries, apply for a library card in person without collecting consent?

GRATUITOUS COMMENT: In general, public libraries should avoid complying with laws that they don’t have to comply with. COPPA was adopted to protect minors from predatory online commercial behavior; libraries have a completely different (and more rigorous) set of ethics and laws to guard against that concern. That said, it is essential for a library to require and confirm that any commercial vendor or affiliate being used to provide library services is following COPPA.

AND WITH THAT OUT OF THE WAY, HERE IS THE ANSWER: In New York, there is no law barring any person of any age from getting a library card. This means:

1. anyone from 0 to “whatever” can get a library card; and
2. no one can tell them “no” (except on a neutral and rational policy basis, like, “We only give cards to people who live in or work in Buffalo,” or, “We require card holders to be able to be held accountable for fines and fees.”).

That being said, libraries that want to impose conditions on youth and require the agreement of a parent/guardian can do so; the trick is to make sure the reason for the adult’s signature, the conditions it imposes on them, and the rights of the youth involved all line up.

Here are just a few examples of how that can be done:

• Issuing a “Simple Borrowing Card” that enables borrowing at any age, but due to lack of informed consent and no parent/guardian signature of minors, and perhaps lack of additional information (like address), can’t enable certain things (record sharing, fees, fines). For that reason, borrowing privileges might be limited by number of items, to e-resources, or temporary access.
• Issuing a “Full Privileges Card” that enables full range of privileges for adults or youth, but for those under 18 (and thus harder to hold to account), only given with the cardholder’s informed consent and parent/guardian’s acceptance of fiscal responsibility. Could be set up so the accountability accepted by the co-signing adult disappears at 18.
• Issuing a “Supported Borrowing Card” that enables full library privileges but, with informed consent of the cardholder, one or more supportive adults agree to help out with managing returns and other responsibilities that require access to confidential library records. This option could be helpful for cardholders who are bad at returning items,[6] adults who may need extra help for any reason, and youth at libraries that don’t need to have an adult on the hook for fines/fees.

Closing thoughts

This topic elicits much passion and strong feelings from many perspectives.

Many parents, of course, want to be engaged in their child’s selection of media, and being a required part of the library card process is one way for them to play that role. Some libraries might choose to encourage this engagement through policy, while other libraries might simply facilitate it as a by-product of requiring a responsible adult on the card to address concerns related to behavior and borrowing.

At the other end of things, children have a right to read and see the world that by nature is beyond the scope of what many parents/guardians envision, while libraries have an obligation to not discriminate on the basis of age when it comes to library access.[7] So while conditions that enable parental engagement can be imposed and parental engagement can be encouraged, such conditions should never do so in a way that unduly burdens library access.[8]

It is a balancing act, but by having clear reasons for requiring parent/guardian signatures and asking for no more than what is required for those reasons is key.

Thank you for a powerful array of questions.

First, I'll answer the easy question: No, you are not overthinking this.

For children fortunate enough to be brought to the public library at a young age, the experience is life-altering. They grow as readers and thinkers. They see themselves as part of a community that shares resources. They start to absorb the values of privacy and information access.

All of this is imbued by the library providing and applying the factors listed in the question: the card policy, the rules around borrowing, and how the child's parents and guardians are brought into the mix.

Which brings us to the crux of the member's question:

We want to have a procedure that balances the rights of minors to read freely, with protection for our library against claims that we have checked out materials to children that the parent/guardian believes to be inappropriate.

In New York, the procedure to ensure the library is protected is simple in one way and complex in another.

It is simple because the recipe for the protection referenced is already in the law.

Just like the chemical formula for one of the molecules in lavender[1] is this:

The “formula” for a library to be protected against an assertion that a minor checked out inappropriate material is:

Of course, this is the protection from claims of criminal liability, and as we have seen, claims of criminal liability aren't the only things libraries and library workers need protection from.

So, let's re-examine the question with the idea that “protection” means from coercive tactics and civil liability,[2] not criminal prosecution.

We want to have a procedure that balances the rights of minors to read freely, with protection for our library against claims that we have checked out materials to children that the parent/guardian believes to be inappropriate.

Other than the practices described in the question (parental acknowledgement at the time a card is obtained, confirmation of age), the tactics to do this are far more complex.

How complex? Well, to go back to the chemistry analogy, the above image was for just one molecule. Here is a full suite of molecules in the essential oils of L. angustifolia (lavender): 

As case law shows, the best protection is a complex array of library practices, all working in alignment to create a beautiful whole.

What is that array?

In short, libraries: keep on doing what you do.

That said, if there is one thing to emphasize that could help guard against negative impacts from a parent displeased with a child's library choice, it would be to add to adjust the language in the parental sign-off from this:

“My child has permission to have a library card. I understand that all library collections, including adult material and internet access, are available to children. I accept responsibility for my child's use of the library and any loss incurred.” This application is retained until the cardholder becomes an adult.

To this:

1. I acknowledge that my child has applied for a library card and will be responsible for following the conditions of that card, including the Library Code of Conduct and Library User Bill of Rights.
2. I understand that materials and internet access at the library are not restricted by age, and that my child must be accompanied by a responsible adult while in the library until age 13.[3]
3. I appreciate that if I have any questions or concerns about my child's use of library services, I can contact [ADDRESS] to discuss them confidentially.
4. [IF NEEDED] I agree to pay all costs incurred by my child due to loss or damage of borrowed materials.

This change in language can do a few things. First, it changes parent/guardian “permission” to get a library card to “acknowledgement” that the child has agency to apply for access; this subtly (or not-so-subtly) removes the implication that a parent must consent for a child to get a library card.[4]

Second, it links the acknowledgement of collection/internet access to the Code of Conduct and the “unaccompanied minors” policy.

Third, by emphasizing how to address concerns, it provides a gateway for concerns to be brought forward in a proactive way.

And finally, if it is a concern, it puts the parent/guardian on the hook for damage fees.

To bring this all home: why is all of this so important?

First, the answer is: this stuff has always been important.

But second: this answer is being written in October 2024. As I write, the wave of coordinated efforts to limit access to library content continues, and children having access to that content is often cited as a motivation for those efforts.[5] While threats of criminal prosecution have been made, the more common tactics are intimidation[6] and threats to curtail funding. Any adjustment a library can make to reduce the chilling effect of those tactics is worth considering.

Thank you for a great question.

Yes, it is a valid concern.

Let’s break it down and explore why.

Once an employee is terminated—whether or not for cause—a former employer should have policies to govern the post-employment relationship.

At a bare minimum, these policies should address:

• If/how dates of employment are verified
• If/how references are given
• How requests for contact information are handled
• How former employee requests for information and action are addressed

This last item is the territory we’re in right now.

For a host of reasons (respectful relations, consistency and accuracy of information, liability...), requests for information and action[1] from former employees should be handled by one person[2] (even if that person ends up bringing in other people).

For (a positive) example, if a former employee requests a reference five years after leaving employment, the request should go to the designated person, even if the recommendation letter ends up being signed by the board president. This will ensure the request and the recommendation is handled just like any other, which avoids accusations of favoritism or inaccuracy.

For a not-so-positive example, if a former employee is seeking information for a legal claim (workers’ comp, wrongful termination, unemployment), that request should go to the designated person, even if the recommendation letter ends up being signed by the board president. This ensures that the information will be released only after the proper releases are in place (for instance, before a recommendation is sent, it is wise to get a waiver of liability).

The reason this “one stop shop” approach is important is because information from different sources can (in our positive scenario) result in inconsistent information that could hurt the former employee or (in our negative scenario) could result in a trustee or director providing information that could harm the library and even serve as the basis for a legal claim.

Trustees, in particular, should be mindful of their “duty of loyalty” when considering a post-employment request. The “duty of loyalty” means that when taking an action as a trustee (such as answering questions from former employees about their employment), the trustee is keeping in mind the interests of the library. If the library has a policy on post-employment inquiries, the trustee should also keep in mind the “duty of obedience,” which would require them to follow the policy.

This does not mean that library trustees and other leaders shouldn’t elevate the concerns of former workers! It just means that when they do so, it is per policy, and organized in way that doesn’t create undue risk to the library.[3] If the library messed up, that needs to be corrected, but from the legal perspective, how something is done is just as important as it getting done.

So, when there is a post-employment inquiry, follow the policy to respond to it. If there is no policy, adopt one.

Thank you for a great question.

Dear Discombobulated:

First, thank you from the bottom of my heart for using a “nom de Dear Abby,” so I could reply in kind. While I would love to think that the writing in Ask the Lawyer stands on the shoulders of legal luminaries like John Marshall, Antonin Scalia, and Learned Hand, the truth is, it probably draws more from reading “Dear Abby” and “Ask Ann Landers” in my formative years.

Which is fine, because above all, Ann and Abby strove to provide guidance that was readable, and useful.

So, what is a useful guidance here?

First (and I know you know this), it is critical for your library’s board to update the policies that have left you without guidance on this matter.

While it is of course the work of library employees to actually apply the policies during the difficult work of processing archival donations, it is the responsibility of a governing board to adopt (and as needed, revise) the policies that guide them.

In the case of “born digital” donations, this is particularly critical.

Many authors are now collecting their research and arranging their drafts entirely electronically. This means entire works that once took boxes and boxes to hold might be on a single thumb drive. This change in the medium, however, doesn’t lessen the impact of a writer’s archive, which can show us the sources, the inspiration, and (gloriously) the mess[1] behind the smoothly finished product.

The ability to store seemingly infinite data does not mean a library can simply accept and archive everything it is given. In fact, it means exactly the opposite. This is because an archive is not storage; it is a curated collection of information gathered for a specific purpose.

A good example of this is in the public-facing description of the New York Public Library’s Manuscripts Division,[2] which says in part:

While the policies for “born digital” content will generally not be in the public-facing part of an online archive’s website, behind the careful description of the scope of an archive will be the many rules it has for evaluating donated content.

Part of that evaluation will address the concerns the member has posed in their questions: Is the content already “out there?” Is it protected by copyright? Did the author gather the material and further manipulate it in a relevant way (for instance, gathering articles to show who was publishing on a particular topic), or is the information simply gathered for what it offers at face-value?

If the content of a donation fits within the scope of an archive, but largely gathers material that is readily available via other sources, it is unlikely that a policy will support an archive taking the time to re-enter that material. The sole exception would likely be if the unique gathering of material shows something special about the project, in which case it could be archived as one thing, and not a collection of singular objects.

For example: Let’s say I write a best-selling mystery novel mostly set in Grace Church in Utica, New York.[3] To make sure my story is authentic, I make a digital copy of every book and newspaper article I could find about Grace Church, linking events in my novel to events that occurred in real life. When I hit the New York Times bestseller list, I donate my archive (on an external hard drive, for security) to the Utica Public Library.[4]

Upon review, it is very likely the library would conclude that much of the material[5] would be too redundant to separately archive. If, however, I not only made a copy of the material, but then made digital notes on it—showing my thought process as the book was developed—that would be a different thing, and separate cataloging would be warranted.

This would be true even for more recent works that were still protected by copyright, but again, only if the digital copy somehow transformed the work from its state in another catalog.

So, with all that as background, let’s look at the member’s questions:

Is there a disclaimer or notice we can put on the online repository to protect us from potential copyright lawsuits?

Is this a situation where every PDF book and document should be researched first to determine if it is in the public domain or protected by fair use?

Should we simply refuse to put any of those documents online due to the risk?

The answer to this is:

The institution’s policies should be applied to assess if the entire donation is within defined scope of the archives.

The institution’s policies should be applied to assess if any of the materials are generally or easily available in other repositories (whether or not under copyright); if they are, they should not be separately cataloged, because they are redundant.[6]

The institution’s policies should be applied to assess if an array of information, because of its unique combination, is valuable to archive as a whole, even if the separate items are redundant. This means the collection of information could be saved as one item to provide insight into the research or creative process, even if the various items comprising it aren’t separately cataloged and available on an online archive. For copyright concerns, however, it may be better to have such content available for review (in digital format) on-site, only.

I appreciate that the world has (and is) changing rapidly, and many institutions cannot keep up with donations and cataloging, let alone policy review.

This is where the leadership structure of a library, museum, historical society, or archive comes in handy. As we know, at NYSED-chartered institutions, the trustees govern, while the employees manage the institution day-to-day.

Policy starts with governance: ensuring an institution is updating its policies to fit present needs is the responsibility of the board. Applying that policy, once it is established, is the responsibility of employees.

If the policies of an institution aren’t up to evaluating “born digital” donations, it’s time for a policy update. A good method for such an update is an ad hoc committee of board members, employees with relevant expertise, and maybe even a special member like a local scholar or IT specialist, from outside the institution.[7]

To start such a committee, a governing board could pass a resolution such as:

WHEREAS the [institution]’s archives are maintained to gather, catalog, preserve, and provide access to a defined scope of content; and

WHEREAS recent changes in technology require the [institution] to evaluate and refine its approach to digital content (both as donated, and as available via the archives);

BE IT RESOLVED that [NAMES] shall be formed into an ad hoc “Archives Policy Review Committee” for purposes of researching, evaluating, and drafting recommended policy updates to confirm the scope, criteria, manner of evaluation, manner of acceptance, manner of cataloging, methods of preservation, and methods of providing access; and

BE IT FURTHER RESOLVED that such Committee is requested to have a recommended update to current policies by the DATE board meeting; such date to be extended if warranted.

In closing, I have to say to “Discombobulated about Donations”—you are not discombobulated at all! The question shows orderly thinking about how to best use the limited resources of an archive and how to protect your institution from risk.

I’d say you’re “Acing it in the Archives.”

Thank you for a great question.

Before I answer, let’s confirm: sometimes, base pay (hourly wage or salary) is the only compensation an employee gets, while sometimes, compensation is base pay plus a robust combination of benefits.

For example, a person earning $20 dollars per hour with no benefits might not be better compensated than a person who earns $17 dollars per hour but also gets on-site childcare, sick leave beyond what is required by law, a family health insurance plan, 21 days a year of paid vacation, and tuition assistance for professional development.

How does a public library, with an obligation to properly steward use of taxpayer funds and a fiduciary duty to make decisions based on the best interests of the library, decide what to offer as compensation?

The answer is this: a public library’s approach to compensation should always be based on a library board’s “compensation strategy”—the approach the board takes to using compensation and benefits to achieve the library’s mission.

When developing a compensation strategy, a library board should be thinking:

• What type of workforce does our library need?
• What combination of base pay and benefits will attract, retain, and develop that workforce?
• What key performance indicators show our compensation strategy is working?
• What external baseline and best practice data should we be gathering to periodically evaluate our compensation strategy?
• How can we demonstrate the value of these costs to the public?

A public library’s compensation strategy should not be a stand-alone resolution or isolated policy. Signs of it should be seen in budgets, annual reports, committee work, and reports to the community—all signs that a library is thinking about how to nurture its most important resource: people.

Which brings us to the member’s question: “Can you also speak to the potential downsides of choosing to pay less than the NYS minimum wage and minimum exempt salary if you discover you are allowed to do so?”

Yes, I can, and my answer is rooted in what can happen when a public library makes decisions about compensation strategy based on a “how low can we go?” approach, rather than the above-listed factors.

We won’t get into all the downsides, but here are the legal risks posed by paying as little as you can legally get away with:

1. Discrimination claims

When people are not paid what they are demonstrably worth, there is an elevated risk that they will have a credible claim that their underpayment in comparison to others is the result of illegal discrimination.

2. Only otherwise affluent people will be able to work at such a library

If someone can’t make a living wage[1] working at a library, only people who have another source of income will be able to work there. This means working at that library will be off-limits to any person who has been impacted by poverty, creating evidence that could support claims for risk #1, above, and for every other reason on this list.

3. Not aligning with industry standards

Many organizations track employment data[2] to show what the baseline compensation is in different regions, by profession, at different-sized institutions. Having a number that significantly departs from the average can be a factor in every other item on this list, as well as many non-legal concerns such as morale, reputation, and strategic planning.

4. Trouble recruiting and retaining qualified employees

A library is just a room full of books without its employees. If compensation does not attract, retain, and develop a workforce that can achieve the objectives in the strategic plan, budget, or annual report to the community, the board is engineering future failure.[3]

5. Diminished ability to forge relationships with community partners and external funding sources

Other not-for-profit organizations know how to read budgets, and they know the difference between frugality and parsimony.[4] Public libraries who are demonstrably choosing to reduce investment in their workforce impede their own ability to partner with mission-aligned groups and undercut their ability to attract external funding. After all, if an organization doesn’t believe in itself, why should an external partner invest in it?

6. Ongoing impacts

Once a public institution establishes a willingness to reduce itself to the bare minimum, even its allies and advocates will have a tough time arguing for more.

I say this, knowing (and having seen firsthand) that library boards face ENORMOUS pressures to cut budgets whenever they can. And—from the perspective of good governance—they should.

The trick is to be ready to show that a budget that invests in a strong workforce is not wasteful, imprudent, or foolish. By developing and continually re-evaluating its compensation strategy, a board is ready to take on all those who would argue they should pay as little as possible. By giving in to pressure and simply slashing compensation, a board is creating an ongoing cycle of austerity.

7. Increased likelihood of employees needing a union to ensure positive working conditions

Unions are powerful mechanisms for employees to advocate for what they need and SHOULD NEVER BE RESISTED.[5] It is nice if they are brought into the equation as the result of workers feeling empowered, rather than feeling misused.

8. Trouble meeting regulatory requirements

A public library must meet certain regulatory requirements; these requirements vary from library to library. A compensation strategy should be based in part on meeting these requirements, as well as other mission and strategic plan-related objectives set by the board.

Below this answer, we are putting a simple template for developing a compensation strategy. Using this, a library can start to resist external (and internal) pressures to simply slash-and-burn the budget—including pressure to offer minimal wages.

Thank you for an excellent question.

Policy

It is the policy of the NAME Library to use a strategic approach to compensation and benefits to achieve the library’s mission.

In developing this Compensation Strategy, the board will continually address:

• What type of workforce does our library need?
• What combination of base pay and benefits will attract, retain, and develop that workforce?
• What key performance indicators show our compensation strategy is working?
• What external baseline and best practice data should we be gathering to periodically evaluate our compensation strategy?
• How can we demonstrate the value of these costs to the public?

The board and director will use the below worksheet to answer these questions on a no-less-than-annual basis. This work will be used as the board develops the annual budget, as the board conducts the annual evaluation of the director, as the director conducts the annual evaluation of staff, and as the board and director work to affirm a staffing plan that meets the current and contemplated needs of the library.

WORKSHEET

1. What are our minimum regulatory requirements for operation?

INSERT

2. What are our additional operational commitments?

INSERT

3. What workforce does our library need to meet these requirements and commitments?

Sample answer:

[NOTE: Really, this is just a sample! Every library should have a different answer here, and the person who best knows the answer is the director, informed by the strategic vision of the board. Some libraries need more part-time folks. Others want mostly full-time. Some want new people and new ideas and community connections, while others want to emphasize long-term folks committed to innovation. Make sure your answers meet the need of YOUR library!]

Sample answer:

The Library needs a workforce that meets not only basic requirements but is quantifiably skilled in the “soft skills” of patron service, outreach, and community partnerships.

The Library needs a workforce that is stable, with full-time employees incentivized to stay long-term.

The Library needs a workforce that is able to provide consistent service without too much backup or assistance from part-time or temp workers.

4. What combination of base pay and benefits will attract, retain, and develop that workforce?

Sample answer:

[NOTE: Really, this is just a sample! Every library should have a different answer here, and the person who best knows the answer is the director, informed by the strategic vision of the board. Some libraries will want to take a completely different approach than what is below. Make sure your answers meet the need of YOUR library!]

Because the Library wants to attract a highly qualified applicant pool, it generally starts its pay range at the baseline established by ALA-APA for our type/size/region of library. The top of the range is then set by our reliance on the attributes of the position, with the baseline being increased by up to twenty percent if merited by the position’s impact on Key Performance Indicators.

Because the Library wants to incentivize long-term employment and continuous improvement, it uses a system of percentage increases and merit pay, in addition to cost-of-living adjustments, to effect raises.

Because the Library wants to remain competitive with private organizations that must offer paid sick leave, we offer twelve days of paid sick leave a year to full-time employees, with the amount pro-rated for part-time employees.

Because the Library wants to remain competitive with private organizations that must offer paid family medical leave, we have opted in to New York State’s Paid Family Medical Leave and pay the premiums.

Because the Library wants to remain competitive with governmental organizations offering retirement pensions, we offer and contribute a set percentage to New York State Retirement for all employees.

Because the Library wants to remain competitive with all organizations and incentivize the retention of employees, we offer a baseline of 10 days of paid vacation per year to full-time employees, with one day added for each year of employment.

Because the Library wants to incentivize retention, we offer a bonus at every 5-year mark.

Because the Library wants to ensure that our incentives to remain are earned, we are rigorous about annual performance reviews.

5. What key performance indicators (“KPI’s”) show our compensation strategy is working?

Sample answer:

KPI #1: Community input shows that our community wants more in-person events for children and seniors. We will ensure that employee competencies/experience and duties related to such programming are part of our workforce recruitment and that the experience of those workers is adding value to programs.

>KPI #2: Community input shows that our reference services and assistance identifying reliable sources of information are very valuable. We will ensure employee competencies/experience and duties related to such services are part of our workforce recruitment and track (without patron identification) instances related to this service.

KPI #3: Our strategic plan commits us to building a new library building by 2027. We will ensure that attracting candidates with experience related to moving a library is part of our ongoing workforce recruitment, so that we have those competencies when needed.

6. What external baseline and best practice data should we be gathering to periodically evaluate our compensation strategy?

Sample answer: The Library will use data from ALA-APA to show what similar organizations in similar regions are paying for qualified library professionals and workers, and the Library will identify reasons to justify significant deviations.

When there is a significant deviation showing we pay at least 10% more than baseline, we will identify why this deviation from baseline is important to our obligations, objectives and/or community. When there is a deviation below baseline, we will identify and confirm why this isn’t important to our obligations, objectives and/or community.

7. How can we demonstrate the value of these costs to the public?

Sample answer: The Library will track our programs and KPI’s and highlight the work of our workforce in the annual report to the community, noting when a worker’s experience and commitment has helped make an initiative successful.

This question threw me into an existential spiral.

Unlike most existential spirals I get hit with these days,[1] this one was fairly pleasant; I got to think about New York State Education Law, due process, and library plans of service.

Here is how it went down:

Well, sure, it’s only natural to want to require a person to read a book before they exercise their right to kick off a costly and time-consuming evaluation process of it.

But yep, the ol’ OIF knows it’s business… having a threshold test to exercise a right creates a legal bone to pick. Best to avoid it if you can.

But hey… if part of the challenge process is a bone, is the whole thing a body? If it’s a body, who gets to inhabit it? What forces govern it? Are they in the library’s control?

If it’s in the library’s control… why enable challenges at all? What’s the point? Is it even required? What is it really for?

IS THERE ANOTHER WAY?

At this point, I started thinking about the recent wild scrambles to batten the hatches and make sure libraries have clear and well-developed collection management policies, so they are ready for book challenges.

Over those years,[2] when I was asked from time to time, “Do we have to have a reconsideration policy?” my answer was, “No, there is no requirement.”[3]

My answer to the inevitable follow-up question was, “While not required, having a reconsideration policy creates a channel for community engagement and feedback, so concerns about collection items have a procedural path to follow. A good policy will ensure the path for evaluating the concern reinforces the ethics of the library and abides by the First Amendment.”

I stand by that reply, but as an innovator, I do want to say: having a “reconsideration” policy for library collection materials isn’t the only way a library can do this.

Consider the current regulatory requirements of public, association, and Indian libraries, each of which must assure the New York State Education Department that it:

(1) is governed by written bylaws which define the structure and governing functions of the library board of trustees, and which shall be reviewed and re-approved by the board of trustees at least once every five years or earlier if required by law;

(2) has a community-based, board-approved, written long-range plan of service developed by the library board of trustees and staff;

(3) provides a board-approved written annual report to the community on the library’s progress in meeting its mission, goals and objectives, as outlined in the library’s long-range plan of service;

(4) has board-approved written policies for the operation of the library, which shall be reviewed and updated at least once every five years or earlier if required by law;

(5) annually prepares and publishes a board-approved, written budget, which enables the library to address the community’s needs, as outlined in the library’s long-range plan of service;

(6) periodically evaluates the effectiveness of the library’s programs, services and collections to address community needs, as outlined in the library’s long-range plan of service;

(7) is open the following scheduled hours:

(8) maintains a facility that addresses community needs, as outlined in the library’s long-range plan of service, including adequate space, lighting, shelving, seating, power and data infrastructure, and a public restroom;

(9) provides programming to address community needs, as outlined in the library’s long-range plan of service;

(10) provides a circulation system that facilitates access to the local library collection and other library catalogs; and provides equipment, technology, and internet connectivity to address community needs and facilitate access to information;

(11) provides access to current library information in print and online, facilitating the understanding of library services, operations and governance; information provided online shall include the standards referenced in paragraphs (1) through (5) of this subdivision;

(12) employs a paid director in accordance with the provisions of section 90.8 of this Part;

(13) provides library staff with annual technology training, appropriate to their position, to address community needs, as outlined in the library’s long-range plan of service; and

(14) establishes and maintains partnerships with other educational, cultural or community organizations which enable the library to address the community’s needs, as outlined in the library’s long-range plan of service.

As shown by the highlighted language, a library is required to periodically evaluate the ability of its collection to meet community needs.

With that ongoing obligation in mind, just for fun, imagine this: instead of a “reconsideration” process as part of a collection management policy, a library continually solicits input via a “Collection Effectiveness Assessment” policy.

Rather than say (in essence), “If you don’t think a particular book belongs on our library, you can file this request for reconsideration,” a Collection Effectiveness Assessment policy could say:

YOUR INPUT MATTERS

As required by state regulations, the NAME Library regularly evaluates the effectiveness of the library’s programs, services, and collections to address community needs, as outlined in the library’s long-range plan of service.

As part of that ongoing evaluation, the library welcomes your input on our programs, services and collections.

Input on specific services, programs, and collection items will be considered in the context of library’s obligations to a) provide a circulation system that facilitates access to the local library collection and other library catalogs; b) provide programming that meets community needs; c) provide equipment, technology, and internet connectivity to address community needs and facilitate access to information; d) provide access to current library information in print and online; and (e) facilitate the understanding of library services, operations and governance.

Input may be submitted by cardholders at [INSERT METHOD].

Once a year, the library will aggregate and assess this input and will factor it into the evaluation of the long-range plan of service and policies that inform the library’s programs, services and collections.

Please provide your input, and it will be evaluated as part of the [YEAR] evaluation cycle.

Of course, a library that used this “give us your input” approach would want to be intentional about how the information is collected and scrupulous as to how the input is assessed and incorporated. The backend of such a system would take some thinking.[4]

But if done with proper attention to detail, this “routine evaluation” rather than a “ad hoc reconsideration” approach could ratchet down in-the-moment pressure to remove books on the basis of their content (which is a First Amendment no-no), while soliciting ongoing (and voluminous) input about library collections in the context of the needs of the community.

Such an approach could also control the pace at which public library boards react to that input, changing it from ad hoc panic[5] to an annual, well-planned, deliberate ritual.

The Collection Effectiveness Assessment approach solicits and empowers individual input but enters it in the context any library must operate from—its duty to meet the overall needs of the public, rather than the perspective of one member of the community. The potential result is input that may go beyond a request to remove or relocate a book; it allows for input on the strategic decisions and policies that select and catalog the books.[6]

So, at the end of all this, what are my thoughts?

I think that if there is a reconsideration policy, it must have clear parameters for who can use it (such as only cardholders or residents of the served community) and after that—as advised by OIF—as few barriers to use as possible.

But I also think there are other ways, rooted in a public library’s regulatory requirements, to empower community members to offer input on collection materials, while minimizing an individual’s ability to initiate a wasteful ruckus.[7] A holistic look at how a library is soliciting feedback might provide an opportunity to shift the library’s approach on this.

Thank you for walking on this existential spiral with me. I hope it was not too dizzying.

The member is referring to NYSED Commissioner Decision #18,402, which resolved an appeal related to books in a school library.

In a nutshell: petitioners[1] appealed to Education Commissioner Betty Rosa after a school board voted to retain five books whose inclusion in the library one of the petitioners had formally requested be reconsidered. Commissioner Rosa upheld the board’s decision and emphasized the legal considerations of evaluating material in public school libraries.

The commissioner’s decision shows the importance of:

1. well-developed collection development policies for school libraries and school library systems;
2. following those policies; and
3. using those policies to ensure that access to school library resources is not limited in a way that violates the state or federal constitution.

The decision did not change law or policy but is noteworthy because it emphasizes that even when a school is accused of having materials that are “obscene” or “harmful to minors,” it is important to follow the law and not to remove books due to an author’s worldview or identity.

Of course, what sounds simple—not removing library materials due to an author’s views or identity—can be complex. Selecting library materials is not simply a matter of preference or gut instinct. Per the regulation at 8 NYCRR 91.1, a school library must have an array of materials to “provide an adequate complement to the instructional program in the various areas of the curriculum.”[2]

8 NYCRR 91.1 means selection of library books must consider not just the context of the library’s collection but the overall instructional program in the various areas of the curriculum—a balancing act that certainly requires consideration of a book’s point of view, which, as the decision describes, cannot be a basis to remove it from the library.

This is why having a collection development policy is so important.

Following a collection development policy can ensure (and document) that the work of assembling a school library collection is not just based on what would be a meaningful and balanced array of books in and of itself but is evaluated in the context of the overall academic operation of the school, while avoiding assertions of viewpoint discrimination.

For this reason, many school district library collection management policies incorporate this regulatory standard into the “selection” part of its policy. A district that does not expressly work from this standard may want to consider using one of the BOCES-supplies model policies[3] to do so.

From there, as emphasized by the decision, once a book is selected and in a school library collection, removal or restriction of access on the basis of viewpoint or identity violates the First Amendment of the U.S. Constitution. 

So, for school districts wondering: how does this decision apply to us? The take-aways are:

1. have a well-developed policy for school library collection development, which incorporates the language from 8 NYCRR 91.1;
2. follow that policy any time books are selected, cataloged, challenged, or removed; and
3. apply the policies to ensure that access to school library resources is not limited in a way that violates the state or federal constitution.

Another take-away (although not expressly stated) would be to not use policy “workarounds” such as removing books from shelves, requiring materials be covered or hidden, avoiding purchasing titles because of threats, or otherwise subverting normal policy and procedure.

For those with the time, reading the decision is highly recommended, as it is a timely primer on these issues.[4] 

Thank you for an important and timely question.

First: Because of the restrictions you cite, continue to not take the bait! If this person is indeed taunting library workers and daring them to deny access, continue to address the situation with tactical restraint.[1]

Second: It pains me to say this, but if you suspect a person is faking having a service animal,[2] there isn’t much you can do in the moment. The current rules are set up to maximize access for people with genuine needs, which means those who fake such needs will often get away with it.  It’s maddening, but it’s the by-product of a good thing: access.

Third: Since you’re stuck with it, use it to make you better.

I don’t mean this in a “grin and bear it” kind of way. I mean, use it to inspire a series of steps that will have your team ready for the next act of seranipoke[3] as well as other situations that can test the rules about access and use of library property.

These steps are:

1. Clearly designate “Employees Only” areas, where visitors (with or without service animals) cannot go.
2. Ensure your library’s policy on service animals includes the requirement that the animal be leashed or otherwise restrained. A good resource for this policy development is here: https://www.ada.gov/resources/service-animals-2010-requirements/
3. Consider special spaces to meet other ADA needs. Service animals should never be restricted to a limited area, but some areas can be limited to meet other needs. For example, if your library has an array of spaces people can use (such as multiple study rooms or meeting areas), one can be designated this way: “We strive to keep this space allergen free. Scented products (including personal hygiene products and cleaning products), food, and animal dander should not be brought into this space.” 
4. And finally: practice dealing with the “taunting/legal” personality and sub-type:[4] a life skill that will come in handy other situations in the library and beyond.

Here are a few scenarios to work with.[5]

A patron comes in and says: “Since I pay taxes, I partly own this property, so I am going to pitch a tent on the lawn. If you try and kick me out, I’ll sue you for theft.”

A visitor comes in and says: “Those lights aren’t up to code. I am going to take pictures of all the light bulbs right now. Please give me the keys to the basement or I will report you to the EPA.”

A reporter comes in and says: “We got a tip that the library only buys books published by big publishers. We are here to investigate why you are shunning local authors and indie publishers. Give us all your purchasing records or we’ll sue you under FOIL.”

For each scenario, an employee or volunteer should practice their own, personalized version of:

Everyone is welcome at the library. The library works toward access for all. Our code of conduct is here. We’ll check on your legal question.[6]

Thanks for a great question!