Policy

Some questions are tricky, some questions are complex, and some questions are simply a Huge Spider Web of Extremely Intricate and Dangerous Contingencies.

Not to be too dramatic, but this question is that last one.

What creates this tangled web?[1] Let’s explore the threads:

Thread One: The ALA Code of Ethics

Because the Code requires advocacy for proper working conditions, the ALA Code of Ethics may actually encourage what could be perceived as “disparagement” of an employer or financial supporter.

Here is the provision:

We treat co-workers and other colleagues with respect, fairness, and good faith, and advocate conditions of employment that safeguard the rights and welfare of all employees of our institutions. [emphasis added]

So, before adopting a restriction on employee communications, a library must consider this ethical obligation.

Thread Two: State and Federal Law

Both state and federal law can protect an employee’s right to complain about their working conditions.[2] And while not every type of complaint is protected,[3] given recent policy statements and cases (see footnote 2), it is wise to not paint what's barred with a broad brush.

Thread Three: State and Federal Constitutions

For a public library or municipality, barring disparagement of the municipality risks violation of both the state and the federal constitutions. I know that doesn’t apply directly to the library in question (since it is an association library and thus non-governmental), but it bears mentioning.

As does...

Thread Four: Civil Service

For Civil Service employees, if discipline for “disparagement” can be portrayed as “retaliation,” there could be a claim under Civil Service Law Section 75-b.[4]

And finally we have...

Thread Five: Fear

While not precisely a legal issue, limiting employee speech can be a major drain on morale, which in turn can lead to employee discontent, which in turn can lead to legal issues. To avoid that, it is best to aim for an environment that solicits and welcomes feedback, not one that stamps out criticism.

So, what can a library—mindful of its reputation and how its employees can impact it—do to protect itself?

Certainly, a library can require an employee writing or speaking publicly about the library to emphasize that they are only speaking for themselves.

Second, any employer can and should emphasize to employees that harassing, discriminatory, threatening, and abusive conduct—in and out of work, online and offline—may need to be addressed by the employer if it affects the work environment.

And third, a library can affirm that all its employees have a right to develop and express their own opinions, so long as they do not use library resources to convey them (no political candidates endorsed on company time!).

The language the member describes in the municipal policy sounds to me like a holdover of policies from the early 2000s. For the reasons discussed above, this kind of language has been removed from many policies over the past two decades. Case law and regulatory agency commentary (a tiny sampling of which are cited in this answer) show why.

Thank you for joining me in the spider web with an excellent question!

For some readers, this might require a bit of background. So, before we dive in, there are two things to know:

First thing: All public libraries (even association libraries) are subject to the “Open Meetings Law” (or the “OML”), so this question applies to all public libraries.

Second thing: “Robert’s Rules” is a common framework for running meetings, but it is not required by law[1] (although it is sometimes in a public library’s bylaws). If a public library board wants to invent a procedure using Discord and Lego to share their board packet and signify how they have voted,[2] and it results in shareable information and documented results, they can do so.

1. Are consent agendas allowed for agencies subject to OML?

A “consent agenda” (or, as defined in Robert’s Rules,[3] a “consent calendar”) is a list of “routine or noncontroversial matters” to be considered for approval all at once without discussion. It is often used by not-for-profit companies, such as libraries, to take action on things like committee reports, etc. with one resolution (“be it so moved to accept and file the reports listed on the consent agenda”).

The potential problem with this is that the OML now[4] requires a public agency to “make available” all documentation to be considered at a public meeting[5] at least twenty-four hours before the meeting, including all the items that might be lumped together in a consent agenda.

Further, there is still some “legacy guidance” out there[6] that suggests the materials related to a consent agenda don’t have to be disclosed (that is wrong). If the items are being voted on as part of the meeting, they need to be available as now required by law, but they can still be acted upon via a “consent agenda.”

2. Should public or association libraries refrain from having their Boards of Trustees accept the financials (motion, second, vote) presented by the library’s treasurer so as not to give the appearance of agreement and assurance that they are accurate and without error?

Hmm... what an interesting question.

It is the duty of a public library board to not only routinely monitor the financial status of the library but to monitor the fiscal activity of the library to ensure it complies with the law and relevant financial policies.

So, while the board should be reviewing and then (if satisfied) accepting the financial report, it is not doing so simply to check it for accuracy, but to:

• Ensure account balances are as expected (based on the budget)
• Assess what to do if balances are not as expected (perhaps due to a budgeting error)
• Make sure deposits and payables are as expected
• Ensure that investments are being managed as required
• Monitor petty cash use as required by law[7]
• Ensure any use of credit is within accepted ranges of authority.

How does a board do this? By phrasing the resolution to match their obligation. So, a resolution should never be simply to “accept the Treasurer’s Report”, but rather, something like:

WHEREAS the board has had an opportunity to review and ask any questions about the Treasurer’s Report;

BE IT RESOLVED that the board notes the Treasurer’s Report was submitted with no further action noted.[8]

On a month where something is out of whack, the resolution could be:

WHEREAS the board as had an opportunity to review and ask any questions about the Treasurer’s Report; and

WHEREAS it was noted that the board had anticipated additional revenue in the form of a grant awarded last March;

BE IT RESOLVED that the board notes that the report was submitted and requests the Finance Committee and Director to develop an alternate plan in the event that the anticipated funds are not received by month-end.

A resolution to acknowledge receiving a report is not the same as acknowledging the board has double-checked the math on every item. However, a board should not review any financial report in isolation, and if things don’t add up, address any concerns via a resolution (as shown above).

3. If there is a board committee that, per the bylaws, is not given the power to act independently o[f] the board, is it permissible for a member of such a committee to make a motion to be followed by discussion and vote without a second?

Ugh. It depends.

If a board is using the current Robert’s Rules (12th Edition) without modification for a body of fewer than 12 members, the answer is no.[9]

If the board has adopted any other standing procedure that bars such action: also no.

On the other hand, if the board is using Robert’s Rules 12th Edition, but with the modification for a body of under 12 people (which requires no seconding): sure!

Whatever rule is selected, it should be applied consistently.

4. From the perspective of OML or others that you know are relevant for the library is it legally acceptable for a board chair to make a motion?

Yes, the board chair can make a motion.

But, for boards that are super into Robert’s Rules—Section 3 sets out how a “member” can “claim the floor,” which is the first part of the intensely detailed method of making a resolution per Robert’s Rules.[10]

The floor is “claimed” when the member is acknowledged as having it by the chair. The chair then guides the process by ensuring there is a second (when required), stating the question, overseeing debate, putting the question, and announcing the result.

So, you probably see the issue: for the chair to “give the floor” to themself and then do all the refereeing for their own motion is… frowned upon.

But again, it is allowed unless the body has adopted rules that disallow it.

I see this question as coming down to common sense and courtesy.

If a motion is of sufficient interest to the board chair that they would like to bring it, it may be better for them to ask the vice chair or another officer to temporarily take over chairing the meeting.

However, if the board chair is putting the motion simply because they are the most comfortable at putting motions,[11] and the process is still being conducted with documented clarity,[12] then it is fine.

The goal—above all other things—is to have a procedure that enables the board to efficiently, clearly, and fairly get business done.

For some people, Robert’s Rules are wonderful; for others, it is just a procedural quagmire. A board should periodically evaluate what process it is using, to make sure it is helping the board be as strong as it can for the library and that the process is being used to unite leadership, not alienate those who don’t know parliamentary procedure.

More important than Robert’s Rules (or any other agreed-upon process), a library board in New York should be trained on both the Open Meetings Law and their duty to monitor fiscal matters, so the materials and mode of conducting meetings complies with the law and protects the library.

Thanks for a great series of questions! See the following page for a “Friendly Cheat Sheet” for Robert’s Rules of Order.

Robert’s Rules FRIENDLY CHEAT SHEET 

When the board needs to take action, it does so by a resolution. Resolutions can be used to request committees to investigate certain matters, to authorize the revision of policy, to exercise any of the board powers listed in the Charter or the Education Law or the Not-for-Profit Corporation Law, and to express the general positions of the board.

Creating and Moving a Resolution

Any trustee with a conflict of interest or potential conflict on a particular item should declare it and recuse themselves from the vote the moment the topic is raised. Any declared conflicts of interest should be noted in the minutes by the Secretary or note-taker.

It is important that the precise wording of the resolution be confirmed prior to the resolution being “moved” forward, seconded (if you’re requiring seconding) and voted upon. To do this, the Secretary or note taker should confirm what the text of the resolution is, and it should be read aloud.

The person chairing the meeting can then say, “does someone so move?” If a member says, “so moved,” the Secretary or note taker should note who moves the resolution.

[Optional] The person chairing the meeting can then say, “does someone second the motion?” If a trustee says “yes,” the secretary or note-taker should note who seconds the resolution.

The person chairing the meeting can say, “any discussion?” Discussion can get a little unstructured, but it is wise for the meeting chair to consider monitoring the time and taking care to ensure each person who wishes to speak gets a chance—in recognized order. Discussion can result in the motion being amended (in which case there needs to be a resolution to amend the pending motion), withdrawn, or it can result in a robust discussion that leads to the final vote.

When discussion is ended (if discussion is particularly contentious and long-ranging, this is where you delve into the big book of Robert’s Rules on making amendments, withdrawing questions, and “calling” questions. However, whenever possible, it is nice to work for harmony as to when discussion is over, rather than use a procedure.) When over, the chair can confirm, “discussion is ended, and the board will now vote.”

Any trustee recusing due to a conflict of interest should make sure their abstention from voting is noted in the minutes.

The votes are noted by the note-taker, are tallied, and if the appropriate number required for it to pass is logged, it should be noted that the motion carried.

I have good news: the attorney you married really knows her stuff!

Of course, that means I also have bad news: the document you witnessed is probably invalid!

Of course, without a detailed review of the actual document, I can’t say for sure. But in general, when a person is signing with “power of attorney,” they sign not as the person they are authorized to sign for but as themselves.

The relevant section of the “General Obligations Law” which governs the power of attorney in New York State, is highlighted below this answer.

So, how do you avoid pushback in the future?

A good practice for the library, going forward, is to have a policy on staff members being subscribing witnesses to a document.[1]

There are several options for this, that run the gamut from “we don’t do that,” to “sure, we do that!”

Here is a simple policy statement for “we don’t do that:”

Because library services are confidential, and because it would require checking identification and record-keeping beyond the scope of normal activities, employees are instructed to not perform services as subscribing witnesses during work time.

Here is a simple policy statement for “we don’t do that” when the library does offer such services:

The Library only offers services of a subscribing witness as governed by our Notary Public Policy.

Here is a simple policy statement for “sure, we do that:”

Library employees are instructed to only perform services as subscribing witnesses during work time if the signature and name being attested to matches the name on the signer’s government-issued photo identification.

I appreciate that the patron, probably without intending to do so, put you in an awkward position.[2] With one of the above options being the official position of the library, that can be avoided in the future.

Thank you for trusting “Ask the Lawyer” with this question!

Here is that section from the NY General Obligations Law:

1.

(a) In any transaction where the agent is acting pursuant to a power of attorney and where the hand-written signature of the agent or principal is required, the agent shall disclose the principal and agent relationship by:

(1) signing “(name of agent) as agent for (name of principal)”; or

(2) signing “(name of principal) by (name of agent), as agent”; or

(3) any similar written disclosure of the principal and agent relationship.

(b) A third party shall incur no liability for accepting a signature that does not meet the requirements of this subdivision.

2. When the agent engages in a transaction on behalf of the principal, the agent is attesting that:

(a) the agent has actual authority to engage in the transaction;

(b) the agent does not have, at the time of the transaction, actual notice of the termination or revocation of the power of attorney, or notice of any facts indicating that the power of attorney has been terminated or revoked;

(c) if the power of attorney is one which terminates upon the principal’s incapacity, the agent does not have, at the time of the transaction actual notice of the principal’s incapacity, or notice of any facts indicating the principal’s incapacity.

(d) the agent does not have, at the time of the transaction, actual notice that the power of attorney has been modified in any way that would affect the ability of the agent to engage in the transaction, or notice of any facts indicating that the power of attorney has been so modified.

3. The attestation of the agent pursuant to subdivision two of this section is not effective as to any third party who had actual notice that the power of attorney had terminated or been revoked prior to the transaction.

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

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

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

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

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

Why is this important?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you for a very important question.

When I was a kid, I watched "Candid Camera"[1] from time to time (as it turns out, this was good training for TikTok).

I don't remember much of "Candid Camera", but I do remember a classic sketch where a person leans their bike against a light pole before going in a store, and then two guys in a cherry-picker truck pick up the bike and thread it over the pole.  The bike owner comes back, and of course, cannot un-thread his bike.  Hilarity ensues.[2]

The point being: people mess with bikes.

So, it is great that this library is considering having a bike lock lending program. 

In a program like this, details are important.  So, I called the library director to talk it over: will the locks be checked out like collection items or borrowed another way?  How will the locks be marked and inventoried as library property?  How will they be returned?[3]

When considering a loan of equipment, a library must consider the risks inherent in the use (and misuse) of the item.  A person who borrows a bike lock to lock up their bike can also borrow a bike lock to lock onto a nearby fence... or even the bikes of people they don't like.[4]  At the same time, an institution can only be held liable for negligence when they owe a "duty of care" and neglect to perform that duty.  So, while a library that gave away 100 bike locks with built-in flamethrowers[5] could face some liability, a library with a well-thought-out program for a small array of locks (sans flames) to meet the needs of patrons should be fine.

A well-thought-out program will:

1.  Source locks that are accessible, safe, and easy to use. 

2.  Ensure the locks selected can be permanently marked as library property, with a call number in case the lock ends up somewhere it shouldn't.

3.  Enable and lend a reasonable[6] number of locks only.

4.  Determine if locks require a library card or can be borrowed as non-collection items.

5.  Develop a policy for locks that limits use to intended purposes, including if the locks stay at the library.

The "policy" does not need to be long.  A policy to borrow a bike lock could be:

Bikes locks can only be checked out for # hours.  When done, please bring the lock back to [location], so others can use it [or put it in the book return bin outside].  If these terms are not followed, the library may remove your ability to borrow a bike lock in the future. 

The library is not responsible for any failure of a borrowed lock to stop bike theft, but we hope a borrowed lock helps keep your bike safe while you visit the library!

There is no magic wording for a policy that will cover every contingency,[7] but solid product selection, clear labelling, and a clear policy should position the library to show that to the extent it owes a duty of care when creating a bike-lock program, it has done so.

Happing locking.

The answer is "Yes."

Of course, behind that answer is layer after layer of complexity.

Layer 1: The "you" in the policy quoted by the question (as in "Content access levels let you control which types of users can view and borrow certain...") could be the SLS, or could be an individual school, or even an individual employee of a school.  It's all about who has the access to control the settings, which is not something that should be left to chance and happenstance.

Layer 2: Databases like SORA are often licensed by school library systems ("SLSs"), not individual libraries or districts. This means that the access controlled by "you" might be controlled by SLS policy, rather than that of a member library (or the SLS's policy could specify that such control is handled at the district or individual library level).

Layer 3: The American Association of School Librarians discourages this type of limit in part 5 of its "Common Beliefs": "Learners have the freedom to speak and hear what others have to say, rather than allowing others to control their access to ideas and information."  This means that once content has been made a part of the school library or school library system's collection per established collection development policy, learners should have access to it.

Taking all these layers into account, a few things emerge:

First, there is a grave risk that restrictions in excess of appliable ethics, regulations, and policy could happen if such access controls are implemented without attention to applicable policy.

Second, if there is no policy that addresses restricting access (whether by age or individual student), that feature of a system should not be used.

Third, if a system with the capability to selectively bar access is acquired, that feature should only be implemented if there is clarity about what policy governs its use, whose policy is it, and who the "you" setting the limits is.  

But as the question points out, even with a policy in place, this may be a dangerous game (or a "creative work-around") when it comes to intellectual freedom, because as the AASL says: "Learners have the freedom to speak and hear what others have to say, rather than allowing others to control their access to ideas and information."

The decision to limit access to content that is part of collection of a school library or library system is an ethically slippery slope.  A district, school, and/or school library system should think very carefully about why it would enable such limits through policy, taking care the policy is consistent with governing ethics and regulations. 

So how is a library, school district, or system to ensure students have access to appropriate content?  The development of a pedagogically appropriate school library or school library system collection lies with their collection policies, NOT the ability to selectively control access to a collection once it is established.  This starts with using established criteria, developed and overseen by trained professionals, assembling a collection that meets the needs of the school.

By regulation (8 NYCRR 91.1), this mandate of a school library is broad: "The library in each elementary and secondary school shall meet the needs of the pupils, and shall provide an adequate complement to the instructional program in the various areas of the curriculum." [emphasis added]

By regulation (8 NYCRR 91.1), the mandate of a school library system is also broad, and it includes developing a plan for "cooperative collection development implementation," or in other words, a written plan for how cooperatively accessed materials are acquired and made available from one district to another.

There is no one way these broad mandates are achieved, and that is where the individuality of a school library system will assert itself.  But regardless of how those cooperative collection development plans are made, leaving the question "who controls collection access by age or individual identity?" unanswered is not a good option.  Through attention to applicable ethics, law, regulation, and the required collaborative governance[1], a school library system can answer that question with clarity, even if the answer is "no one."

Vacation time is weird.

Why is it weird?

Well, first, it's fictional: it's time you get "paid" for, even though you are not at work.[1]

Second, unlike earned wages, vacation time can be magically obliterated, with employers deciding through policy that only a certain amount can be "carried over" or accrued.

And third, we don't use it enough.

So, with all the weirdness laid out on the table, let's answer the question:

Yes, an employer can use a clear and well-communicated policy to limit payout of accrued vacation time at termination. 

This is because in New York, accrued vacation is not considered wages[2], but is considered to be a "benefit or wage supplement" (and why failure to pay it can be "wage theft").[3]

This is very nice of New York, but the protection does come with limits, the biggest one being that an employer can limit the obligation to pay out the accrued time through policy.  So long as the policy is clear, there is no obligation to pay out accrued vacation.

Or, as they New York State Department of Labor puts it[4]:

Whether an employer must pay for unused time depends upon the terms of the vacation and/or resignation policy. New York courts have held that an agreement to give benefits or wage supplements, like vacation, can specify that employees lose accrued benefits under certain conditions. [See Glenville Gage Company, Inc. v. Industrial Board of Appeals of the State of New York, Department of Labor, 70 AD2d 283 (3d Dept 1979) affd, 52 NY2d 777 (1980).] To be valid, the employer must have told employees, in writing, of the conditions that nullify the benefit.

IF...

• An employee has earned vacation time

AND...

• There is no written forfeit policy

THEN...

• The employer must pay the employee for the accrued vacation

A typical example of this limit is cited in the member's question: limiting "carry-over" from year-to-year, which effectively means wiping out time earned before it is used, generally to limit employee absence from too much accrual. 

Case law and New York State Department of Labor Guidance specifically allow this limit, with the burden placed on the employer to have policy that is clear and well-communicated.[5]

As recently stated in a 2018 case[6] about unpaid vacation:

The determination as to whether a former employee is entitled to be paid for vacation time is generally governed by the contract between the parties (see e.g. Gennes v Yellow Book of NY, Inc., 23 AD3d 520, 522, 806 N.Y.S.2d 646 [2005]; Matter of Glenville Gage Co. v Industrial Bd. of Appeals of State of NY, Dept. of Labor, 70 AD2d 283, 421 N.Y.S.2d 408 [1979]; Colton v Sperry Assoc. Fed. Credit Union, 50 Misc 3d 129[A], 28 N.Y.S.3d 647, 2015 NY Slip Op 51894[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; Steinmetz v Attentive Care, Inc., 39 Misc 3d 148[A], 972 N.Y.S.2d 147, 2013 NY Slip Op 50905[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013]). "The employee bears the burden of proving an entitlement to payment for vacation time" (Linwood v United Activities Unlimited, Inc., 43 Misc 3d 131[A], 988 N.Y.S.2d 523, 2014 NY Slip Op 50612[U], *2 [App Term, 2d, Dept, 2d, 11th & 13th Jud Dists 2014]; see Grisetti v Super Value, 189 Misc 2d 800, 801, 736 N.Y.S.2d 835 [App Term, 2d Dept, 9th & 10th Jud Dists 2001]).

So, the key to what this library wants to achieve is a clear policy with a well-established "forfeit" provision; in this case, saying all but 2 weeks' worth of accrued vacation are forfeited upon termination.

When considering implementing such a payout limit, an employer is wise to (A) pay close attention to the practical effect it will have and give time for employees to use their surplus accrued time or (B) offer an on-time payout for over a certain amount of accrual, so people do not feel accrued time has been taken away from them. This requires attention to how much time an employee is allowed to take during the year and other factors that will be uniquely set by the employer’s policy.

And with that, I wish you good vacations.

What an insightful question.

Here is my answer: no, "delegate" is not quite the right word in this context.  A more suitable phrase could be:

"Per library policy, the Director, or an employee designated by the Director, has authority and responsibility for the selection of library resources."

Here is why:

The word "delegate", in the context of a board operations,[1] pertains to outsourcing very precise responsibilities (such as managing investments[2]).

Many board responsibilities can't be delegated.  For instance, a library board has a legal responsibility to hire the library director,[3] and a legal responsibility to pass policy related to library operations.[4]  Neither of these can be outsourced (or "delegated").

But having responsibility to hire the library director and a legal responsibility to pass policy related to library operations is not the same as performing professional duties required of that director, per that policy.

Just as with other work performed by a credentialed professional, collection management should be governed by board-approved policy, but that policy should not "delegate", but rather authorize, those duties to the person qualified to perform them.

If this seems a little obtuse, here is a small poem to illustrate the point:

A board can hire a lawyer

But cannot practice law.

A board can hire an architect

But plans it cannot draw.

A board can hire a CPA

But can't audit on its own.

A board can hire a barber

But can't cut hair alone!

When a job requires credentials,

When it's licensed or certified,

The duty's not "delegated,"

Instead the action's "authorized."

So when selecting books to add

Or choosing what to weed,

The policy's set by the board,

But the director does the deed.

For these reasons, a collection management policy should emphasize that the board passes the policy governing the process, but the policy empowers the Director to set and apply the selection criteria.  The sample language above is not the only way to articulate this, but it is one way; to see another sample, ask your library system director for the model policy created last year by PULISDO and ESLN.

Thank you again for a thought-provoking question.

A "pass-through" is when a 501(c)(3) organization agrees to let a non-501(c)(3) use its tax status to accept grant money.  It’s a not uncommon arrangement; in fact, some 501(c)(3)’s are actually set up to do it so smaller and less established organizations can benefit from grant money.

Since it can give access where access would otherwise be denied, a pass-through can be a very helpful and equitable thing.  But sharing a tax status is like sharing a milkshake: you can do it—and it's a sweet gesture—but it comes with risks.

What are those risks, and how can they be handled?

At the bare minimum, any public library considering serving as a pass-through must have a written, board-approved policy for doing so, and the policy must include:

• How does serving as a pass-through serve the library's mission and long-range plan, and how do they select pass-through affiliations that stay within that purpose?
• What is the admin fee for serving as a pass-through (usually no more than 10%)?  NOTE: the admin fee is essential for a public library since it cannot offer the accounting and other services associated with being a pass-through without being remunerated at least at cost.
• Does the library have the accounting and administrative capacity to safeguard the money and monitor that all funding requirements have been met before it is disbursed (since failure to meet them can require a claw-back)?
• The contracts for the grant must be kept for 6 years.
• The library's accountant should be consulted before any pass-through is approved, so it can be assured that the library can properly account for the funds.
• The library must keep in mind that a failure to meet the requirements of the grant could impact future funding from state/federal sources AND being associated with funding from a source (even just as a pass-through) could bar the library from obtaining funding from the same source for its own project.

There are risks to both state and federal legal compliance, as well as contract compliance for an individual grant, if these items are not addressed properly.  For this reason, many NFPs just say "NO" to requests to be a pass-through.

A related but separate solution to this type of need is the library serving as the grantee and bringing in the potential "partner" as a subcontractor (or "sub-awardee").  In that scenario, the library applies for the grant and then sub-contracts with the person/org who will do most of the work.  (This relationship is usually written right into the application for the grant).

Bottom line: if the library wants to offer services as a pass-through for mission-aligned organizations, it can, but it should have a written policy and be ready to spend administrative time 1) monitoring the grant terms and 2) accounting for the grant.  Once a policy is in place, requests can be evaluated, and pass-through relationships can be governed in accordance with it.

Still not sure if your library should do that? Here’s a litmus test:

If a library is not prepared to have its staff spend around ten hours of admin time (or more) on it each fiscal year, then the answer should be a "we do not have the policy or capacity to grant this request".  If the library feels like the project is worthy enough, it could then offer "however, the library will consider applying for the grant directly, with your organization as a subcontractor."

I hope this is helpful!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

With all that said....

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

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

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

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

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

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

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

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

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

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

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

But it is a good place to start.

Here it is:

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

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

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