Municipal Libraries

Let's begin by breaking this question down a bit and giving one-word answers.

Question 1: Is it legally possible for a municipal library to manage its own construction projects?

Answer: YES.

Question 2: Can a library board take on such a role?

YES.

Question 3: What is the legal framework for such an arrangement?

Well…

And with that, we're out of one-word answers. So, grab a relaxing beverage of choice, get comfy, and join me in fiddling with the Rubik’s Cube of New York State library law: library real estate.

Why is this issue a "Rubik's Cube"?

Well, for starters, there are SIX questions every municipal library board must always know the answer to:

1. Who owns the library building and grounds?
2. Who insures the library building and grounds?
3. Who is responsible for day-to-day maintenance of the library building and grounds?
4. Who pays for day-to-day maintenance of the library building and grounds?
5. Who pays for construction, renovation, and repair of the library building and grounds?
6. Who can sign contracts as the owner of the library building and grounds, and/or who [if anyone] can sign contracts as "tenant" of library building and grounds?

One would think there are only two possible answers to each of these questions ("the library" or "the municipality") and that those answers would have some sort of internal consistency—but that is not the case. Often, the answers are hybridized (with a third party playing a role), and what is written on paper might not be true in practice. Further, a clear answer to one question doesn't mean there is a clear answer to another. This means that the six questions of the "Cube" form scores of possible combinations.

Here are some interesting combos inspired by situations I have run into:

• The municipality owns the building, but the deed restricts use to only the library, which arranges for and pays for everything but the heat and roof repairs.
• The library owns the building and grounds, and the municipality has nothing to do with it. NOTHING.
• Everyone says the library "owns" the building, but they don't own the land; when this is found to not be the case, everyone wants to keep saying it anyway, since that helps keep things separate and emphasizes the library board's authority over the operations of the library.
• The municipality owns the building and grounds AND has custody of the library's money AND the library board can never get a clear answer on what part of the library budget is being used to maintain and insure the building.
• The municipality owns the building and grounds, but the library handles everything (with or without a lease).

These different permutations are neither "wrong" nor "right", but they do set the stage for some interesting dynamics. Here are some inspired by situations I have run into:

• The municipality owns the building, but the deed restricts use to only the library, which becomes very useful knowledge when a new mayor tries to threaten the library with eviction.
• The library owns the building and grounds, and the municipality has nothing to do with it. NOTHING. So, everyone is happy because there is no cause for friction about real estate.
• Everyone says the library "owns" the building but they don't own the land. This works well until a construction grant requires proof of ownership and the truth has to be articulated in a letter to the state.
• The municipality owns the building and grounds AND has custody of the library's money, AND the library board can never get a clear answer on what part of the library budget is being used to maintain and insure the building.  No one knows if/how it is insured. This can be a nightmare.
• The municipality owns the building and grounds, but the library handles everything (with or without a lease). When there is a lease, it should establish this level of authority: who can arrange a contractor, whose insurance covers what, etc. When there isn't a lease, the lack of clear authority can become a problem.

Because of the variety possible, no two libraries have precisely the same combination of answers to these questions. But each of these questions relates to the member's request for the "legal framework" that enables a municipal library to oversee its own construction project.

Let's examine the six questions with respect to this "framework."

1. Who owns the library building and grounds?

When the library owns the building and grounds, it is indisputably able to enter contracts for construction (site testing, general contractors, contractors).

When the library doesn't own the building and grounds, it only truly has the authority to enter contracts for construction if that authority is confirmed in writing.

This can get confusing, as anyone can hire services (such as those of an architect) for a building but might not have the authority to do so on behalf of the library.

2. Who insures the library building and grounds?

This factor is important because insurance and risk management are such a huge part of designing and building a library (whether renovating, repairing, or newly constructing). If the library isn't in a position to call the shots on insurance, it is not truly in control of the project.[1]

3. Who is responsible for ensuring day-to-day maintenance of the library building and grounds?

Very often, libraries who are not positioned to sign a contract for major construction (because they don't own the building or have a lease or municipal policy that allows them to) find themselves arranging small services such as a plumber visit or a quick repair by an electrician. From what I have seen, this seeming authority is due to one of two things; either 1) the municipality has a policy allowing "department heads" or others to sign on to smaller contracts, or 2) it is due to these smaller contracts flying under the radar of the risk management and procurement authorities.

4. Who pays for day-to-day maintenance of the library building and grounds?

Even when a library owns the building the issue of "who pays" can result in a municipality denying the library’s ability to sign a routine maintenance contract.

For example, if a municipality funds the library out of a general operations budget (no separate tax levy) and is the custodian of the funds, a municipality can functionally[2] deny the ability of the board even so much to bring in a needed cleaner, if there is not exceptional clarity.

On a more routine level, this aspect can get weird[3] when municipalities deduct or charge costs for services provided by third party contractors or facilities departments, without even alerting the library.

5. Who pays for construction, renovation and major repair of the library building and grounds?

The examples in #3, above, become more extreme once construction, renovation, and major repair come into play.

Some municipalities will accept construction funds and then try to bundle the projects, using library money to underwrite non-library projects.[4]

Some will reject architectural plans generated by a firm hired by the library, claiming the municipality must be on the contract.[5]

And some, like the member's question describes, will demand to have complete control over a project.

 6(a). Who can sign contracts as owner of the library building and grounds?

This factor is the one at the heart of the member's question.

There are two ways a municipal library can sign a contract with a general contractor for construction:

A) As owner of the building; or

B) With confirmed permission of the actual owner.

"Confirmed permission" is the key term here; the "confirmation" can be in the form of a policy, a letter of understanding, or a lease. It should be in writing, and it should be clear and unambiguous. If it doesn't exist, the library can't (or at least, shouldn't) sign the contract.

6(b). Who [if anyone] can sign contracts as "tenant" of library building and grounds?

If a library is a tenant of its municipality, the lease or license to operate the library within the building should clearly spell out this right or set out the procedures for solely or jointly arranging contracts.

And that's it.

I wish I could offer a more straightforward formula… sort of an A + B = C. But as I said, it's a Rubik's Cube, and a municipal library can have any of several combinations. The bottom line: if the library doesn't either own the building or have clearly articulated authority to sign contracts for and manage risks associated with construction, renovation, or major repair of the building, the board won't be situated to manage the project.

So, for a problem like the one described by the member, I suggest:

Step 1: Research and confirm your library's answers to all six questions.

Step 2: Assess which answers are the cause of any impediment to the library overseeing its own construction projects.

Step 3: Develop solutions to the issues.[6]

This last step is of course a vast step. What makes it extra challenging is that each library will have its own unique solutions, which take months or years to develop and actualize. But I promise there always ARE solutions.

Happy building!

This issue—the question of a public library acting as a pass-through on an ongoing and open-ended basis for its Friends—is like a mouse seeking cheddar[1] cheese in a maze.

Picture the mouse: whiskers a-quiver.[2] It can smell the cheese. It sees the maze.

Picture the cheese: it's yellow, made in upstate New York, and sliced just right. It would be delicious with a whole wheat cracker.

Now picture the maze: so tantalizing. So twisty and turny. There are many paths forward, but only one has a tantalizing dairy product[3] at the end.

Except: there is actually no path to the cheese.

That's what this issue is like.

Here's why:

With a "pass-through", a 501(c)(3) agrees to accept the award of a tax-deductible donation; usually, this is done per the terms of a "pass-through agreement"[4] with a non-501(c)(3) individual or group, for a charitable purpose.

Examples of a pass-through include:

• A school district public library and a local artist agree to jointly apply for a grant from a foundation so an unincorporated artists collective can paint a mural at the library, but the grant is solely to the library, who "passes" the money to the artists' group for the project;
• A municipal public library affiliates (in writing) with a newly incorporated not-for-profit refugee assistance group without a 501(c)(3) to accept a grant for a language assistance program;
• An association library agrees to be a pass-through on a per-project basis for any local group offering programming consistent with the mission of the library; per the letter of agreement by which an organization in the area of service can participate, the administrative fee charged by the library is either 5% of the grant or $1500, whichever is smaller. Participants are tied to a strict set of performance criteria and accounting is set up to ensure documentation is immaculate.[5]

While there are a variety of fiscal and operational procedures that each of these written arrangements would have to follow, each of them shares a common feature—an endgame to the purpose of the pass-through (e.g., the mural is painted, the English-language learners program is launched, and the objective of each "per project basis" is met).

The member who submitted the question rightly highlights the crux of the question here: can this approach be used for unspecified purposes, with the 501(c)(3) accepting tax-deductible donations and then giving it to the non-501(c)(3) entity?

The answer is "No." Here is why:

In the three examples, and other defensible pass-throughs, the donation money going to the unincorporated or non-501(c)(3) entity is conditioned on the objectives set by the grant. In other words, the money is not a gratuity or a donation; it is part of a "quid pro quo" transaction, with the "quo"[6] being consistent with the conditions of the donor.

Accepting unconditional donations to then re-gift them to an unincorporated or non-501(c)(3) entity is a totally different situation from the "quid pro quo."[7] For an association library, it would be frowned upon, but with some careful maneuvering (a written agreement making the Friends an offshoot of the association library's operations), it could be done and properly accounted for in the required financial disclosures.[8] But for a municipal library, with its extra conditions and an absolute bar on just giving away money,[9] there is no way to make the otherwise elegant solution suggested by the member work.

So, the maze of options has no way to get to the cheese. Is there another way?

There is, but it is largely antithetical to the purpose of having a "Friends" group.[10]

Here is the way: the donations to the public library would go to a "Friends Fund" that is 1) always in the custody of the library; 2) managed and expended per all the fiscal controls of the library; and 3) is only distributed to Friends per an agreement that creates defined conditions (the "quid pro quo") , so it is clear the funds have been used "for the benefit of the library."

For example: The board of the ABC Town Library resolves to create a "Friends Fund" for very well-defined parameters, including that when the fund reaches $50,000.00 dollars, the board meets with the Friends to discuss how it will be used. In 2024, 100 people each donate $500.00 tax-deductible dollars to the ABC Town Library's "Friends Fund." The library’s board of trustees then meets with the Friends and passes a resolution to disperse the money with well-defined deliverables, effectively turning the collected funds into a "grant" or even a "contract for services." The grant or contract is then managed per all the same applicable fiscal, operational, and procurement requirements that the library always has to follow.[11]

Of course, by the time a library and friends group go through all that—only to have a structure that is far less flexible than a traditional Friends group—the Friends might want to just take the time to get 501(c)(3) status.[12]

Thank you for a thoughtful question.[13]

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

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

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

Here are the brief answers:

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

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

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

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

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

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

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

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

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

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

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

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

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

Final tips:

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

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

 

[NAME OF MUNICIPALITY] Library Trustee Candidate Service Readiness Checklist

 

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

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

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

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

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

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

1.  Name of potential nominee:

2.  Address:

3.  Are you at least 18 years old?

            YES    NO

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

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

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

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

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

                        YES    NO

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

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

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

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

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

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

            YES    NO

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

SIGNATURE OF POTENTIAL NOMINEE :___________________

RECEIVED BY LIBRARY ON :___________________________

CONFLICT OF INTEREST FORM RECEIVED BY SECRETARY ON ____________

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

I have a lot of fun-loving clients.  Here are some examples of activities I've created liability waivers for:

• Mechanical bull riding
• Smashing a car with a sledgehammer for charity
• A "ToughMudder" event
• Sword fighting

I have also worked on liability waivers for more commonplace activities like attending a hockey game, horseback riding, and cheerleading.[1]

The purpose of a liability waiver is to limit a person's ability to bring legal action for injuries related to a particular activity.  Therefore, the trick to creating a successful waiver is making sure it is enforceable when a worst-case scenario--an injury related to that particular activity--occurs.

Because of the high stakes--and because the law in New York can have an impact on how much liability can be waived (for instance, a waiver of liability at certain types of pools[2] is invalid, no matter how well-written) -- a waiver should almost always be custom-crafted to the actual activity, at a specific place, and thus not borrowed from another entity.

The waiver for the mechanical bull rider was different from the waiver for the hockey spectator.

The waver for the person venting their rage on a car for charity was different from the waiver for an equestrian.

The waiver for the sword fighter actually had more in common with the waiver for the cheerleader than you might think...but was still different.

Add to this diversity the fact that in New York, the waiver for a municipal library might have to look different from one used by another municipal library, or an association library, and there are a lot of variables to consider.

So, my answer to the question "Will we need to consult an attorney to draw up the waiver for a fee?" is: if your library wants assurance that the waiver actually protects the library from liability, then YES.

But wait, there's more.

I appreciate that for a not-for-profit such as a library, which likely doesn't have a budget to go around hiring lawyers to hand-craft waivers for every separate fitness activity (or if it does, would rather spend that money on materials and programming), bringing in a lawyer every time you want to sponsor a new physical fitness event can be cost-prohibitive.

So here are a few options between commissioning a new waiver for every fitness event, and just scrapping such events in the first place.

Solution 1: Pass the risk of liability on to the instructor

Any physical fitness class being offered by a library should be led by an instructor with the documented qualifications and insurance coverage to limit and cover the risk of injury related to the activity.

For a yoga class, this means the instructor should be able to show they 1) are certified by an acknowledged yoga authority; 2) are willing to accept responsibility for injury caused by their yoga class, and 3) have insurance that will cover such injury (whether the person sues the instructor, or the library, or both).

A contract showing all this will 1) recite the instructor's qualifications; 2) list their insurance (and attach a certificate showing the coverage; and 3) include a "hold harmless" and "indemnification." That means that if there is a claim of liability resulting from the classes, the instructor's insurance coverage will take the heat.

Such an instructor will, usually, have their own waiver that they require participants to sign, tailored to the precise activity.  Further, to most experienced instructors, none of this will be an outlandish requirement.

Does this mean that start-ups and amateur instructors might not be able to offer classes at your library?  Yes...and while it may seem harsh, that is a good thing.  If a person is great at yoga and loves sharing what they've learned, but doesn't have the documented credentials to assure the library that they know how to teach it, or insurance coverage, they should not be selected to offer a fitness class by your library.

The public attending a fitness class will trust that the library has picked the right person; having the ability to demonstrate a bona fide qualification and insurance is a key sign you've made the right selection.

Solution 2: Work with your insurance carrier

Your library likely has some form of general premises liability coverage.[3]  This means that an insurance carrier, on an annual basis, is sending your library a copy of an insurance policy--and the library is paying for it.

Aside from your board and employees, you know who doesn't want your library to get sued for an injury that happens during a fitness activity?  Your insurance carrier.

Now, what I am about to write may, or may not, be helpful.  In my experience, some insurance carriers will bend over backwards to make sure their "insured" doesn't get sued; they will offer training on risk management, they will offer employee screenings, and they will offer to review forms and policies.  Other carriers, on the other hand, will just accept a check for your library's annual premium, and wish you "good luck" with liability.

When your library is contemplating any physical event with a moderate risk (yes, like Zumba), it is a good idea to check in with the insurance carrier for the library.  Do they have waivers they want you to use (even if your instructor has held you harmless)?  Do they have rules they require you to post (even if the rules are pretty obvious)?  Is there an exception in your coverage (does it not cover fitness classes at all)?  All of this is critical to know before your library takes on any risk for a program. 

And who knows...I've actually had clients get the "all clear" from insurance carriers, who confirm "Yes, that is within the scope of your coverage, let the Zumba commence!"  It all depends on what's in the policy.

Solution 3: "One-Waiver-Fits-Most"

With a "one-waiver-fits-most" solution, an organization identifies a suite of low-risk activities, and asks that their lawyer write "one waiver to rule them all,"[4] and only offer that type of activity...saving costly custom waivers for riskier (and likely rarer) activities. 

What is "low risk" activity?  That is up to your lawyer, insurance carrier, and library.  But it in general a "low-risk" activity is one so low-key and mundane, with no heightened or specific risk, that an enforceable waiver covering it wouldn't require any special bells and whistles.[5]

Common examples of such "low risk" activities might include:

• Nature walks in a town or city park
• Organized bike ride in public park
• Local history walking tour
• Breathing or mindfulness class
• Croquette, badminton, tennis, Wii[6]

Although they might seem low-risk, I would generally exclude from this list:

• Yoga (including chair yoga)
• Dance class
• Any contact sports
• Organized bike ride on public streets
• Anything involving children running

THESE ARE JUST EXAMPLES...each library's list of "low risk" activities to be conducted with a "one-size-fits-most" waiver will change based on the library's type, level of insurance, and tolerance for risk.[7]

While not perfect, the "one-size-fits-most" solution is a cost-effective way to confidently offer programs from a menu of activities, while also protecting the library and not blowing the budget on legal services.

To ask a lawyer to write a "one-size-fits-all" waiver for your library, gather:

• your insurance policies
• code of conduct
• list of typical activities
• any grants funding the activities
• Lease (if your library doesn't own the building)

Be ready to meet for maybe half an hour with the lawyer to discuss the fitness events that your library wants to host.  For municipal libraries, be ready to involve the town/village/city attorney at either the beginning, or the end, since depending on building ownership, and some other factors, the municipality may need to have some input on this too.

Mix that all together, and you should get:

• a list of "low risk" activities,
• a "one-size-fits-most" waiver;
• some guidance on when you need an instructor contract;
• instructions on how low to save signed waivers[8],
• and a sense of reduced-liability confidence.

Happy Zumba!

 

---

[1] Cheerleading may be common, but it is fraught with risk!  P.S. NCAA: it should be considered a sport.

[2] New York Consolidated Laws, General Obligations Law - GOB § 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable

[3] In my work with libraries, I have found this is not always the case.  One important annual task for trustees is to ensure that the library has adequate insurance.

[4] In writing.  Always confirm legal advice in writing.

[5] An example of a "bell and whistle" would be the specific warning: "horseback riding is inherently dangerous")

[6] Unless played the way my family plays, in which case, there is not enough insurance in the WORLD.

[7] Although I am willing to bet croquette is on the "low-risk" list state-wide.

[8] Yes, they can be signed and/or archived electronically, but confirm the method with the drafting attorney.

There is no legal authority in New York that denies the ability of a town public library (or any municipally affiliated public library) to solicit donations.

There is no law that bars it.

There is no regulation that bars it.

There is no comptroller opinion that bars it.

There is no attorney general opinion that bars it.

There is no case law that bars it.

Now, despite all that lack of barring, there ARE many reasons why libraries funded by tax dollars, and operating in conjunction with a municipality, may want to avoid the general solicitations of donations (some previous "Ask the Lawyer" RAQs on this issue is here: https://www.wnylrc.org/ask-the-lawyer/raqs/282,  https://www.wnylrc.org/ask-the-lawyer/raqs/68 and here: https://www.wnylrc.org/ask-the-lawyer/raqs/25). For those reasons (and maybe ten more I could name after a strong cup of coffee), I always strongly urge public libraries who wish to solicit donations to have a precise, defined purpose for soliciting donations...something that is distinct and separate from the core operations of the library.

For example, if the library would like to sponsor local artists to create window displays related to new books and programming, a solicitation could be "Donate to our local artist window program!" Or if the library wanted to solicit funds for extra activities, a solicitation could be "Donate to our 'Kids Jumping into Reading' 2023 fitness program!" Or if the library wants to create or grow an endowment, it could be "Assure our future, donate to our endowment fund!"[1]

And of course, regardless of the purpose, any library receiving donations must be set up to receive, track, and expend the donations per proper fiscal controls. If the money is for a specific purpose (as I have suggested it be), the accounting mechanisms to show it was only expended for that purpose must be in place before the money is solicited. If the money is being solicited online via credit card or other electronic means, care should be taken to select a processor that the library's financial institution regards as secure.

Solicitation of donations are how public libraries can grow non-essential programs, amass a capital funds, and plan for long-range strategic objectives. The extra conditions non-association libraries face when it comes to using donated money--controls on procurement, criteria for investment, and the interplay between public and private money--is why many public libraries designate Friends groups to solicit funds for "extras."

But while a public library may determine that such solicitation is best left to an affiliated not-for-profit, so long as they have the right policies and fiscal controls, there is no bar to a public library receiving donated funds, and no bar on asking for them... or enabling such a request by putting a "donate" button on the library website.

Thank you for a great question.

---

[1] DO NOT DO THIS unless the library has an investment policy that meets the requirements of both the General Municipal Law and the Not-for-Profit Education Law, and both the library's accountant and lawyer have reviewed the policy and the fund parameters and have confirmed, IN WRITING, that the policy meets the requirements.

 

Many libraries, for a variety of good reasons, have security cameras.  Some libraries control those recording systems; others do not.  But no matter how they get there, when cameras are in a library, the questions posed by the member are critical.

Here is why: every library in the State of New York is bound by ethics and law to safeguard patron privacy.  Those obligations start with the ethics of the American Library Association[1] and the New York Library Association,[2] assuring patron privacy; these ethics find legal teeth in New York Civil Practice Law and Rules[3] and the Public Officer's Law.[4]

At the local level, patron privacy is often reinforced in a library's ethics statement, bylaws, and policies.  The practical duties of patron privacy are found in job descriptions (particularly of directors and IT professionals), and in membership terms between libraries and systems.  And it is part of every new employees' on-boarding.[5]

Because librarians and library leadership are so aware of this privacy obligation, and because assurance of patron privacy is a key component of information access, protecting patron privacy is often referred to in the library community as nigh-unto-sacred duty. So sacred, in fact, that I have met more than one librarian willing to go toe-to-toe with law enforcement seeking unauthorized access to patron data.[6]

While it takes a certain type of gumption to stand up to law enforcement, it takes another type (equally critical, but not as concentratedly defiant) of gumption to think about patron privacy in the context of software, landlords, and security cameras.  One takes a willingness to take a stand in the moment.  The other takes a willingness to think about details, to leave nothing to chance, and to ask a lot of very specific, very persistent questions.[7]

Both of these types of gumption are critical to the modern librarian, but only one gives you an easily dramatic answer to the question "how was your day?"

We'll leave the dramatic aspect of this for another time.[8]  Below, please find a boring--but vital-- checklist of steps and language to help a library answer the questions posed by the member, when a landlord is using cameras trained on library premises:

Step 1: Assess what the library's lease says about security and use of cameras

For libraries with landlords (remember, your library has a landlord even if you only pay a token amount of rent,[9]) it is important to have a written lease. 

Why?  Because, among other critical things,[10] that lease can provide clarity about who provides the on-site security (including a camera system) and set the stage for how the landlord and the tenant will manage security-related details.

In this case, the member has clarified that the security system will be controlled by the municipal (county) landlord.  Here are the details posited by the member:

These cameras will not be regularly monitored unless there is a reason to consult them. We will not be viewing the footage per a patron’s request. They will be maintained by our county facilities staff and consulted only in cases where a criminal act was committed.

These details, upon which the library will base its own actions, should be confirmed in the lease.  Such confirmation should include, whenever possible, a marked survey or map of the property, showing the limits of the camera's line of sight.

Step 2:  Assess if the lease terms and security camera arrangements promote the privacy commitments of the library

Just a note: while a municipality may procure and install a camera system with the intent to only monitor it "in the event of alleged criminal activity," in my experience, there is no way to enforce such a restriction, and some risk that the use of the cameras could change over time.

For instance:

• The recordings could be subject to disclosure under the Freedom of Information law;
• The recordings could be accessed via subpoena in the event of an alleged personal injury or other civil claim;
• The temptation for a town, city, or county to use the recordings internally (even for something as innocent as using them to check if a snowplow crew did a good job, or if a worker is arriving on time) might be hard to resist.

A library can't control this.  That said, when a camera system is installed, a library can request assurance that the municipality's internal policy, governing the cameras, include language:

• Alerting the users of the system to the sensitivity of patron records at a library;
• Confirming that the footage showing people entering and leaving the library is not regarded as a "library record" by either party; and
• Confirm that under no circumstances should the security cameras enable recording of information reflecting patron use of services.[11]

Once a library performs these two steps, it can answer the member's two questions:

First question: What type of permanent notification do we need to post about the use of cameras?

Once the library has written assurance that the landlord's use of recording technology will not result in the creation or disclosure of a library record, it is up to the director and board if, or how, your library should alert the community.

Personally, as a patron, I would appreciate a "courtesy notice" such as: "Your library records are confidential.  Please know that while our landlord has security cameras in [ZONES], the library does not allow recording that could impact patron privacy inside the building."[12]

OR (if the library makes use of its own security cameras): "Your library records are confidential.  Please know that our landlord has security cameras in [ZONES] and may use those for security purposes, but any security camera record maintained by the Library that shows use of library services is considered confidential and is used for library purposes only."

Second question: What major points do we need to ensure we include in our privacy policy?

The privacy policy of the library, or in the alternative, the minutes of the board, should reflect the details and privacy safeguards confirmed through the two-step analysis above. 

For instance, after the analysis is done, the board can note in the minutes: "Regarding the landlord's use of outside security cameras: As of DATE, the Library's landlord, NAME, will have security cameras observing certain outdoor areas, including library property.  The Library has verified that its lease, and the landlord's internal policy, prevent the landlord's security cameras from generating or disclosing confidential library records.  The public will be notified as to where the cameras are recording, and that such recordings are not confidential library records."

I appreciate that this review/confirm process can be a bit clunky.  However, it is also an opportunity to alert a critical partner (a landlord, and sponsoring municipality) to the importance of library-patron confidentiality, and to assure the public that privacy is a priority.  By seizing the moment to confirm that privacy is being properly considered and enforced, a library not only assures its ethics and legal compliance, but can create an ally in that eternal (and important) fight.[13]

I hope this approach is helpful.

 

 

---

[1] ALA Code of Ethics.

[2] As found in the NYLA Code of Ethics: " III. We protect each library user's right to privacy and confidentiality with respect to information sought or received and resources consulted, borrowed, acquired or transmitted."

[3] CPLR 4509 states: “Library records, which contain names or other personally identifying details regarding the users ...including but not limited to records related to the circulation of library materials, computer database searches, interlibrary loan transactions, reference queries, requests for photocopies of library materials, title reserve requests, or the use of audio-visual materials, films or records, shall be confidential and shall not be disclosed except that such records may be disclosed to the extent necessary for the proper operation of such library and shall be disclosed upon request or consent of the user or pursuant to subpoena, court order or where otherwise required by statute.”

[4] https://docs.dos.ny.gov/coog/ftext/13308.htm

[5] If it's not, it should be.

[6] You guys are so cool when you do that.

[7] Like the member is, here.

[8] Actually, we address it here: RAQ #26.

[9] Generally, this token rent is placed at $1/year.  Just once it would be fun to see a more random number, like $1.26/year.

[10] Such as insurance, hours of operation, emergency procedures, notification in the event of injury, protocol for repairs, capital improvements, etc...  For more commentary on this, see RAQ #166 about having any MOU with a sponsoring municipal entity.

[11] If security cameras are aimed at a curbside pick-up location, the library should consider if the recording is a library record.

[12] Forbidding recording in a public library is a controversial topic, I know.  This language is written to address recording that can impact patron privacy.

[13] Hey, I managed to make careful attention to minutia sound dramatic!

In law school, one of the first classes you take is "real property."
 

I remember thinking, back in that first semester before my brain got converted into that of a lawyer: "Real" property?  What...is there something called UNreal property?

Of course, nowadays when I see questions like this—about land, and land rights, and the laws impacting them—I think "Oooh...a question about real property!"

Warn your kids: this is what three years of law school will do to you.

I appreciate questions about real property, because I really enjoy working on issues involving land, and land rights, and the laws impacting them.  Whether it's roads, old buildings, or construction matters, some of my favorite work requires reviewing surveys, obsessing over title abstracts,[1] and poring over inspection reports.  And don't get me started about design-build contracts.

In this case, many of the fundamental considerations of this submission were addressed in a previous "Ask the Lawyer" from 12/13/2019.  So as a primer, readers may want to take a look at that previous answer, where we discuss some of the fundamental things a library has to consider when selling real property.

This background allows me to jump right into the specific concerns of the member's questions:

Question 1: "How much autonomy does the Library have in accepting and selling this property?"

Answer: unless there is a specific provision in the library's charter, bylaws, or contract with its sponsoring municipality that expressly creates some type of co-ownership, the library, as the sole owner, has ALL the autonomy.

Question 2: The sponsoring municipality feels that perhaps it is their responsibility to handle the sale according to their regular procedures, including a permissive referendum.

Answer: unless there is a clear legal claim that puts title entirely or partly into the municipality, the various state laws governing sale of municipal property do not apply; rather, the sale is governed by Education Law Section 226.

Question 3: Finally, who controls the proceeds from the sale?

Answer: the board of the library, and no one else.

 

To the member's brief, pithy questions, I will add a question of my own:

Question 4: Why am I so confident about the answers to questions 1 through 3?

Answer: because I have researched the following:

• The relevant state laws and regulations of the State of New York
• Case law regarding cases involving public library sale of property
• Relevant guidance from the State Comptroller
• Relevant guidance from the NY Attorney General
• Relevant guidance from the State Education Department

These materials span over sixty years of library law-making, and I am not going to summarize them all here.  But for those who wish to dive a little deeper into this topic (buckle up, unless you, too, are interested in real property, I've been told this is pretty boring), here is a brief overview:

Education Laws 260 and 226, together, confirm that the trustees of every library chartered in New York,[2] may "[b]uy, sell, mortgage, let and otherwise use and dispose of its property as they shall deem for the best interests of the institution..."

Here are some examples showing how this legal structure has been applied:

In 1953, the NY State Comptroller opined that when a village and a library jointly acquired property, they were co-owners.[3]  This means a library can co-own a library building along with its sponsor (much as two individuals can co-own a parking lot).  If that is the case, the law and regulations applicable to both entities would govern a sale.  However, that same year, the Education Department confirmed that a chartered library is a separate entity from its municipal sponsor.[4]  

Flash forward to 1976, when the Comptroller stated that a school district library[5] could acquire a building on its own.[6]   Since that time, there hasn't been a lot of case law over who owns library buildings:[7] like any other stand-alone, not-for-profit education corporation, a library can own its own building.

That said, while the New York Education Law empowers public libraries to buy, sell, mortgage, and otherwise dispose of their real property, there are other laws and regulations controlling how the resulting assets can be used.[8]  This is why a public library (or any library) should not buy, sell, lease, or arrange for capital improvements without its lawyer involved (that goes double for accepting a bequest or a restricted donation of land or a building, which has not only legal/regulatory considerations, but could also be fraught with the drama that can accompany wills and transfers of land).

Now, in the midst of all this ownership/autonomy, it is good to remember: not all public libraries own their buildings.[9]  Some libraries are tenants of their sponsoring municipality (to check the ownership of the building, check the deed or the real property tax records for your county).  But even a library that is a tenant of their municipality buildings can own a separate building—if some nice person or entity decides to give them one.

So in a case like the one described by the member, the most useful thing would be to 1) check the library's charter; 2) check the documents giving title of the property to the library; and 3) make sure the lawyers for both the municipality and the library (and the buyer!) are on the same page about ownership and salability.  As the lawyers do their "real property" thing, so long as the title is "clear" and solely in the name of the library, it is the library who owns the property, and the board of the library who decides if/how to sell it (in a way consistent with its charter, bylaws, and charitable status....on that, see the "Ask the Lawyer" from 12/13/2019).

Thank you for a great question.

 

---

[1] A "title abstract" is a summary of everyone who has owned a parcel of property since it was first regarded as something to be owned.  It can contain all sorts of historically salacious details, like when a house was foreclosed on, or what it sold for in 1935.

[2] Which all Regents-chartered "municipal" libraries are.

[3] Opinion of the State Comptroller #142 (1953).

[4] Opinion of Counsel for the NY Education Department No. 61 (also 1953).

[5] Another type of "public" library.

[6] Opinion of the State Comptroller #771 (1976).

[7] There is a lot of case law involving the planning and construction of library buildings, but no squabbles about who actually owns them.  For a good example of a case involving construction of a library, see Matter of Rimler v City of NY, 53 Misc 3d 1212[A], 2016 NY Slip Op 51627[U] [Sup Ct, Kings County 2016].

[8] Martin v Board of Education, 39 Misc. 2d 519, 241 N.Y.S.2d 396, 1963 N.Y. Misc. LEXIS 1971 (N.Y. Sup. Ct. 1963).

[9] It is important to know who owns the building!  If your library is a tenant rather than an owner, it impacts things like personal injury cases (an example of this is found in Deinzer v Middle Country Public Library, 2013 NY Slip Op 33823[U] [Sup Ct, Suffolk County 2013].

Non-governmental employers

Recent changes to the Labor Law make the "private" part of this question easy to answer: since all employers must now offer all employees sick leave (unpaid if the employer has under four employees, paid if five or more), an employee may use that sick leave for the purpose of obtaining medical care, including to get vaccinated.

If a non-government-agency employer would like to go one step further and not require an employee to use accrued sick leave, but instead, give them a day (or two half-days, for the vaccine that requires two shots) for the specific purpose of being vaccinated, that's fine, too, so long as the library considers vaccination of employees to be part of its Safety Plan (making the vaccination a work activity, and not a prohibited gratuity from a charitable entity to a private person).[1]  But there is no obligation to do so.

Small but critically important exception to this rule: if your library employees are in a union and their time off is subject to a collective bargaining agreement, you must check and abide by that agreement, or develop a special provision with the union.

 

Public libraries

Okay, this is where it gets tricky.  For public libraries that consider their employees to be employees of a "government agency," hang on one second, we'll address what you can do in the paragraph below.  For all other public libraries, who must follow the new sick leave law, the section above applies.

 

Public Libraries Who are "Government Agencies"

For public libraries whose employees are considered employees of their sponsoring municipalities,[2]  there is no obligation to "give" paid time out of the library to get vaccinated unless it is in a collective bargaining agreement or your government subdivision's response plan.  However, if your library is allotted vaccine as part of a rollout to public employers, and the entity you are getting it through (sponsoring municipality or school district) is encouraging vaccination by allowing it to be done on work time, that is an option to consider.  Further, if your library develops an employee vaccination rollout plan as an addendum to its Safety Plan[3] and would like to offer up to a certain number of hours of paid time out of the office to encourage vaccination, if part of a plan, that can be allowed (but is not required).[4]

Small but very important exception to this rule, just like with "private" libraries: if your library employees are in a union and their time off is subject to a collective bargaining agreement, you must check and abide by that agreement, or develop a special provision with the union.

 

For All

Issues like this a) affect mission and morale, b) relate deeply to employee and public safety, c) can impact a library's budget, and d) are fraught with compliance concerns, so any decision is best to tie to your library's Safety Plan,[5] and to have trustee approval (confirmed by a vote).

I continue to admire the care for others, tenacity, and attention to detail members of the library community bring to their questions as we get through this pandemic together.

 

 

 

---

[1] Just to be clear: to avoid a forbidden benefit to an individual, NO charitable entity should "give" a paid day off for vaccination without linking the enhanced safety of workers to its charitable operations (i.e., making it a part of their Safety Plan).

[2] Note: even when this is the case, the library's board of trustees, and only the board of trustees, determines who is hired, how they are compensated, and any matters related to development, discipline, and termination.

[3] This "Ask the Lawyer" addresses how to prioritize vaccine allotments and roll them out through policy: RAQ #193.

[4] At least, it is not required as of 1/21/21.  As with all things COVID, check for updates on this.

[5] And be reviewed by a lawyer, whenever possible.

For me, the most persuasive commentary on this topic is from the NYS Comptroller, who wrote in 2002:

This Office has previously noted that no provision of law requires that library fund monies-that are not expended during a fiscal year be returned to the municipality or school district which sponsors the library (see, e.g., 1983 Opns St Comp No. 83-32, p 37; see also Opn No. 87-49, supra). Therefore, we have expressed the opinion that library fund monies remain the property of the library and surplus monies in a municipal or school district public library fund, or surplus moneys held by the library treasurer, may be carried-over from year to year, and accumulated and expended for proper library purposes as determined by the library board (see [*3] e.g., 1980 Opns St Comp No. 80-260, p 71; 1979 Opns St Comp No. 79-866, unreported; 1975 Opns St Comp No. 75-399, unreported; see also Buffalo and Erie County Public Library, supra; compare Korn v Gulotta, 72 NY2d 108, 534 NYS2d 108; but see Town Law § 107[1], Village Law § 5-506[1][c], County Law § 355[1][g], as amended by L 2000, ch 528).

I am leaving the citations in the quote above to show that the Comptroller didn't just randomly arrive at this opinion; it is based in both law and case law.

Despite this clear line of reasoning, it is not unheard of for towns and villages to claw back surplus funds from the library budget at the end of a fiscal year. Why do they do it? Because they can. Why can they do it?  Factors include:

• Is there a separate levy for the library (a "414"), or is it funded like a Town Department?
• Does the library have an agreement with the municipality to serve as custodian[1] of the library's funds, or have things just "always been that way"?
• Does the library have its own fiscal controls, or does it just use the municipality's?
• Does the library have a policy regarding "Fund Balance"?

To be clear: none of these factors should be determinative of how strong an argument a library can make to retain surplus funds and accumulate a fund balance from year to year.  The opinion of the Comptroller is clear: the library has that power.

But if the matter comes up for debate, it is important that the library be able to make a strong case for retaining the funds.  Those arguments are:

• If there is a separate levy for the library (a "414"), the funds were unambiguously levied for the library. 
• If the municipality serves as the custodian of library funds per an agreement, the agreement can address the retention of surplus; without an agreement, past practices can be changed at the whim of a town or village leadership.
• If the library does not have its own fiscal controls, it risks appearing unready to take on the fiscal responsibilities.
• If the library does not have a policy regarding "Fund Balance"[2], it is not in an optimal position to argue that it has a plan for money (and is thus entitled to it).

So, the very plain answer to the question "Does New York State Education Law #259 apply here?" is: YES.  However, it is clear not everyone sees it that way...and until there is some new case law[3] to go on, the more a library can make a compelling argument that those surplus funds not only rightly belong to the library, but also that the library is entitled to and relying on them, the better.

Thank you for an important question.  It sounds like your Town should give that money back, but if that ship has sailed (with your library's money!) laying the groundwork to retain surplus funds in the future would be good fiscal planning.

---

[1] I am not addressing the contingency where the library is the custodian of the funds (using its own bank account), since clawing back a fund balance is less likely to happen when the library Treasurer demands and takes custody of the money.  For that reason, if a library and board have the capacity to be the custodian of the funds, I urge libraries to do that!  --But only if you have the capacity (and the fiscal policies).

[2] For instance, some libraries use their surplus fund balance as a rainy-day fund, or to advance or match moneys when they apply for grants.  So long as there is a rational relationship between the amount in the fund and the identified purpose, it is not only allowed, but appropriate, for a public library to maintain such a fund.

[3] Sadly, behind every useful case we can cite in favor of this interpretation, there is a legal action that probably cost the participants a great deal of stress and money.    In the case such as this, what is called an "Article 78" could be explored to demand return of the money.  Most libraries, realizing they could win the battle but lose the war, would not try suing...or even threatening.

 

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

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

But we know that is not the case.

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

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

Caveats

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

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

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

And here we go:

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

 

[PROPOSED] MEMORANDUM OF UNDERSTANDING

Between the [NAME] Library and the [MUNICIALITY]

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

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

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

Mission and Shared Purpose

The mission of the Library is [INSERT MISSION].

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

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

 

The Parties

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

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

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

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

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

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

 

The Relationship of the Parties

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

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

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

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

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

 

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

BY: _______________________________________________

 

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

BY:______________________________________________

 

 

Attachments:

A: Library Charter

B:  Library Bylaws

C:  Section of municipal code pertaining to library

D:  Library Plan of Service

E:  Survey or schematic of library property

F:  Current Insurance Policy (premises)

G:  Current Insurance Policy (assets)

H:  Benefit documents

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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