Voting

There are a few scenarios where a capital project, such as a renovation, could start with a vote of the electorate of a school district library.[1]  If the project is subject to a bond, requires a tax levy increase, or is somehow tied to a referendum, the voters' go-ahead might be needed before work[2] can begin.  In addition, if a municipality or district was deeding over a gift of real property, that could require a public vote, as well.

However, in the scenario described by the member, the money is "in the bank" and is not conditioned on obtaining further funds from the taxpayers and no additional real property needs to be purchased or funds need to be levied or raised.

With that, while in library law I make it a rule to "never say never" in this case, I don't see a need for a public vote.  Just follow the rules of procurement![3]

[1] Which is how the phrase "public vote" is used in the question.

[2] "Work" has a variety of meanings in this context; it could include hiring an architect, or purchasing real property, or putting an actual shovel in the ground.

[3] As with other major purchases by public libraries, compliance with competitive bidding requirements in capital projects is key, even if the library is using donated funds.  For more on this, visit https://www.osc.state.ny.us/files/local-government/publications/pdf/seekingcompetition.pdf.

There are many reasons a not-for-profit organization, such as a library, may contemplate employee membership--or structured involvement--on the governing board.

Common reasons are:

• To ensure timely employee involvement in governance matters;
• To promote transparency and workforce trust in board decisions;
• To balance or enhance other dynamics that govern the organization.

In this case, the member library's community is calling for a worker-trustee, which means the motivation could be a combination of all three...or that the community just likes the idea.

So, with such laudable objectives, what could be the problem?

The member has flagged the concern.

While the motivations for employee trusteeship can be worthy, anyone who has read a not-for-profit "Conflict of Interest" policy understands the problem: trustees, by law[1], are barred from voting on matters in which they have a financial or other personal interest.  This means that an employee also serving as a trustee would have to recuse themselves from every vote involving budget (since it would cover their payroll), personnel policies (since it would impact their terms of service), and decisions about certain personnel (since it could involve their boss).

This would create such a patchwork of recusals and non-involvement that it would deny the board the benefit of a fully participating member.

To avoid this issue, many boards who want the benefits of employee participation, without the inherent conflicts, use what I'll call "structured involvement."

Examples of "structured involvement" include:

• An employee serving as an ex-officio non-voting member of the board;
• An employee serving on a "Workforce Relations" or other personnel-related board committee;
• A "liaison" role with well-defined access to and expectations for attending board meetings and reporting back to employees.

For this type of "structured involvement" to work, a few things are critical.

First, the purpose of the involvement must be well-defined and crystal-clear.

If the purpose of the employee sitting at the trustee table is to channel ideas about programming and innovations, the employee should be on the committee(s) dealing with programming and innovations.

If the purpose of the employee sitting at the trustee table is to report out board developments to co-workers, the employee should not attend the board meetings, but have designated time and an agreed-upon format for reporting their observations out to the workforce (and the board should have an established mechanism for being assured that the message is getting out as intended).

If the purpose of the employee sitting at the trustee table is to give timely employee input on matters of strategic importance (budget, operations, hours, new services), then the role must be set up in such a way that they feel safe and protected providing that input.

And whenever the employee is required to do any of this work (rather than attending an open meeting[2] as a volunteer), they should be compensated for it.

Yes, I said it.  The elephant in the room on this type of service is whether or not it should be paid.  From the legal perspective, the moment the work has an expectation of a specific type of service (required attendance, writing reports, preparing materials for board review), it should be part of that employee's job. 

On the flip side, if the board simply creates space on every agenda for a 15 minute, voluntary "Employee input" session, and there is no requirement to attend or provide service, it should be on unpaid time.

For libraries with a union, incorporating routine employee involvement in board work and meetings should be supported in the bylaws, and further implemented through the collective bargaining agreement (this is usually where compensation for such work is confirmed).

For libraries without a union, this can be accomplished through bylaws, and a resolution that further clarifies the purpose and structure of the role.

No matter what, before an employee takes on a routine, established role in relationship to a board, that board, the library director, and the employee must have 100% clarity on the way things will work, or there can be trouble ahead.[3]

To achieve this "100% clarity", boards and the workforce should assess what they want...and what they don't want...from the relationship.  Some boards may want the benefit of an employee's specific experience there to call on as they make decisions for the organization.  Others might rely solely on the library director for that but may want to ensure another trusted employee is there to observe board decision-making and report it out to other employees.  Still others may want a non-voting "library professional committee" composed of workers, to balance a dearth of library experience on a board.

Whatever the identified need is, the structure selected (non-voting trustee, committee, committee member, liaison, routine guest) should support the board's articulated goal for the participation--and no more. 

For this reason, involving employees and board operations is an important undertaking, and one not to be taken lightly. It is appropriate to have several rounds of discussion amongst both board members and interested employees, to identify the mutual goals and achievable benefits of setting such a structure in place. Whenever possible, a lawyer should review the final resolution and documentation that will set the structure in motion, to make sure it is consistent with the library's charter, bylaws, union contract, and policy...and that it doesn't create needless risk of liability.[4]

Once the purpose and structure for employee involvement is well-documented and in motion, it can be an amazingly fruitful model.  Though it can be something of a pain to implement, the rewards can be many.  I encourage any library who thinks there could be a benefit to explore this avenue.

Thanks for a thoughtful question!

[1] New York State Not-for-Profit Corporation Law, Section 715 (NY Not for Profit Corp L § 715 (2015))

[2] Because no matter what type of chartered library, the employees are just as able to attend as the rest of the general public, under the Open Meetings Law.

[3] Big trouble.  As in: trustees not respecting the role, employees thinking they have authority and access they don't, employees voting when they shouldn't, trustees demanding service they aren't entitled to...all of which can lead to a legal mess (and be very tense).

[4] For example, a structure that has an employee seeming to participate in decision-making, if the right legal protections (indemnification and insurance) aren't in place for the employee.

This reply will answer the questions up-front, and then tackle the concern about the full board not seeing a matter since it was voted on in committee in the "background and commentary" section.

The questions:

1.  Can the non-trustee members of a committee vote if one is called for in the committee?

Yes, if a library board has a committee with non-trustee members, those non-trustee members can vote.

2.  Should we amend the by-laws to specify them as voting/non-voting members of committees?

No, there is no need to amend the bylaws.  If the non-trustees are properly appointed committee members, they may vote.  If the non-trustees are not actual committee members but are instead there in an advisory capacity, they should not be referred to as "members" in the first place, and the appointment letter should make that clear.

And now, for some background and commentary.[1]

Back in 2014, the New York Not-for-Profit Corporation law was amended to create two types of board committee:

• Committees of the Board
• Committees of the Corporation

As the member points out, "Committees of the Corporation" are committees that--while they might work hard on matters of great importance to the library--cannot "bind" the board...meaning, they can't make "official" decisions final (authorizing a budget, signing a contract, or voting to hire a director).

"Committees of the Board," on the other hand, are authorized to "bind" the board in certain matters, including investments, endowments, employment, and some matters relating to real property.[2]

While this "Committees of the ______" change was quietly revolutionary in many not-for-profit circles,[3] it was already somewhat familiar territory for libraries, because the Education Law already authorized them to have an "Executive Committee" to "transact business of the corporation" between meetings.[4]  In other words, libraries were already used to designating committees with express and binding authority.  This just gave them more options to bring on more participants who were not trustees.

Now, while "Committees of the Corporation" may not be not tasked with the Really Big Decisions, as the member points out, they can still do very important work.

For example: let's say a library has created a "Public Relations Committee" ("of the Corporation") responsible for monitoring and identifying tactics for the library's presence in traditional and social media.  The committee doesn't sign contracts or even write press releases; it simply monitors and issues advice, meeting virtually once a month to review the library's media footprint and track its various metrics.

Based on some observations, the committee decides the library should adopt a "Social Media Policy."[5]  Since the committee can't "bind the board," they can't vote to adopt the policy, but if they vote to do so, they can:

• Vote to designate a committee member or sub-committee to draft the policy;
• Draft the policy;
• Write a memo urging the board to adopt the draft policy;
• When both are ready, vote to authorize the submission of the draft policy and endorsing memo to the full board.

Now, here's where the member's concern comes in: How does the full board know this work is being done? 

The critical work of committees "of the corporation"--even if they are not "binding" the board--should be connected to that of the full board by a routine report (or meeting minutes) that are "received and filed" by the full board subsequent to every committee meeting.[6] That way, whether or not the committee votes, the board is aware of its work, and what is in the pipeline.  Committee work should never take place in a vacuum; it should always be linked to the operations of the board by reports and minutes.

A high-functioning library board operates like an orchestra--different sections may rehearse separately, and sometimes, there may even be a prima donna moment or two--but the end goal should be harmony. 

A board's various committee types may have different functions, compositions, and authority, but they are all part of that system.  Thank you for a great question that showcases their differences and value.

[1] A valid concern.

[2] They can't do everything, though, so proceed with care!

[3] A wild bunch who brandish the word "fiduciary" the way some people wield the term "linebacker."

[4] https://www.nysenate.gov/legislation/laws/EDN/226

[5] The special focus of a PR committee, by the way, is why a library may want to bring on some non-trustee "ringers" to help with specific issues (a building committee is another great committee where you might want someone for a non-specific set of skills).

[6] Or at least, whenever the committee meets.  Some committees only meet and act once a year; obviously, that committee only needs to submit one report!

When I started writing “Ask the Lawyer” in 2016, my daughter was two years old.

I would like to be able to answer this question like a two-year-old Molly and say simply (and loudly): “NO!” (you don't need a petition).

But time grinds on, so sadly, I have to answer this question like 9-year-old Molly, saying instead with an eye roll:  “You shouldn't have to do that.  It's not specifically required, and no one has had to do that for ages. But I guess there is some sort of precedent, so maybe do it so you don't get trolled?”[1]

The reasons for this convoluted stance is as complex as the reason why my daughter's “craft corner” is still a mess.[2]

Here they are:

As many of you know, the board of a public library (of any kind) can require a school board to put a vote to “establish or increase” a levy in support of that library per Education Law Section 259(1)(a).

In 2007, the NY Legislature amended [3] 259(1)(a) to specify that such a levy: “shall be submitted to the voters of the district as proposed by the library board of trustees...”

Lest anyone get confused as to why the Legislature would make such a change, the memo in support of the bill explained:

This legislation would amend Section 259 of the education law to clarify the ability of a library board of trustees to place budget proposals before voters for approval. Paragraph a of Subdivision 1 of Section 259 is amended to authorize only budget proposals approved by the library board of trustees to be placed on a ballot. [emphasis added]

This purpose of the amendment is explained in the section of the legislative memo ‘justifying’ the amendment:

JUSTIFICATION:

This bill clarifies and conforms provisions relating to library budget votes. The amendment to paragraph a (budget votes in school district public library) conforms the mechanism for placing a vote on the ballot to that already in Paragraph b (budget votes on municipal funding of other types of libraries). Ensuring endorsement of the proposition by the library board of trustees will eliminate the potential for multiple and conflicting library budget proposals on the same ballot. School budget propositions are currently subject to approval of the school board.

...

 While interpreting statutes is a complex exercise, ‘plain language’ is an important factor.  In this case, the plain language of both the 2007 amendment and its supporting memo indicate that to avoid “multiple and conflicting library budget proposals,” the path to a school district ballot is via the library board, for terms “as proposed by the library board of trustees.” And since this is per Education law 259(1)(a), which clearly states the resolution is “as proposed by the board” no petition is required.

Okay, great.  So the library board can adopt a resolution to propose to the voters of the district, and the voters of the district have the power to say ‘yes’ or ‘no.’

I would love to stop this RAQ there, but there is another wrinkle to consider here: is there a way for the voters to put such a resolution on the school district ballot?

This question is raised by two sections of the Education Law.

First: Section 259(1)(b), pertaining to most[4] municipal ballots, which provides:

1. Except as provided in subparagraph two of this paragraph, whenever qualified voters of a municipality, in a number equal to at least ten per centum of the total number of votes cast in such municipality for governor at the last gubernatorial election, shall so petition and the library board of trustees shall endorse, the question of establishing or increasing the amount of funding of the annual contribution for the operating budget of a registered public or free association library by such municipality to a sum specified in said petition, shall be voted on at the next general election of such municipality, provided that due public notice of the proposed action shall have been given.

Second: Education Law Section 2008, which empowers school district voters to initiate a vote on taxes.

This combo is nicely summarized in an opinion from the New York State Comptroller in 1981, when the authority of a library board to put the appropriation on the ballot was still a bit shaky[5]:

Therefore, it is the opinion of this Department that where a library board requests an appropriation proposition to be placed on the ballot at the annual meeting of a central school district, the board of education must comply. Such a proposition may also be submitted to the voters by petition under section 2008(2) of the Education Law or the board could include such a proposition with a revote called under section 2007.  The notice of any meeting where such a proposition will be voted on should so state. [emphasis added]

But that was back in 1981.  Since the 2007 amendment to Education Law 259 made it very clear that only a budget “endorsed by the library board” can be put to a school district vote, it would follow that the voters no longer have the power to submit a petition under Education 2008 (without the endorsement of the board).

So: is a petition signed by a certain number of voters required to put a budget before the voters of a school district?  No.  Just like a school board, the library board doesn't have to obtain a petition to exercise its authority under 259 and submit a budget for a vote.  And can a group of voters use their powers under Education Law 2008 to force a vote?  Again, the language and history of the law suggests the answer is ‘no.’

The tricky thing with all of this is that while the language is clear, the changes to Education Law 259(1)(a) have not been put to a legal test, and there is enough ambiguity for a school district to want to stick with a tried-and-true (pre-2007) practice and insist that a school district ballot 1) must be initiated by a petition signed by the right number of voters; OR 2) can be initiated by district voters per 2008 without the need for board approval.  What can I say?  Lawyers love precedent.[6]

And now, of course, I have to give a disclaimer.

Sitting here in my lawyer cave, I can argue what the language of the law ‘suggests.’  BUT until we get a test case to settle the issue—like how the 2022 Eisenhauer v. Watertown[7] case settled whether school district taxes can support a municipal library without violating the NY Constitution[8]—we won't have absolute certainty.  So, libraries should work carefully with their counsel, who should work carefully with the counsel for the school district, to confirm the process and language of school district ballots. Clear, open channels of communication between the library, the district, and the town can avoid problems down the road—and of course, libraries should always get a written opinion when budgets and funding are on the line.

Thank you for an important question!

[1] Yes, my daughter talks like both a lawyer and a Youtuber.  Since most people reading this are librarians, there's a strong chance the children in your life talk this way, too.  Yay, reading and multi-media literacy!

[2] “I was going to clean up but I couldn't find anywhere to put the dried mint and the glue gun, so I stuffed all the pipe cleaners in an old shoe box and called it a day.”—Not an exact quote, but a good paraphrase.

[3] Bill #A5107, sponsored by Assemblymember Eddington, and likely worked on by many people you know in “LibraryWorld” (at the time, I was in HigherEdWorld).

[4] The law makes excludes from the term “municipality” a city with a population of one million or more, and includes a county when the public libraries located in such county are members of a federated public library system whose central library is located in a city of more than three hundred thousand inhabitants.

[5] Reporter 1981 N.Y. Comp. LEXIS 726 * | 1981 N.Y. St. Comp. 176 ** Opinion No. 81-167

[6] It's a lawyer's security blanket.

[7] (Matter of Eisenhauer v Watertown City Sch. Dist., 208 AD3d 952 [4th Dept 2022]), appeal dismissed by (Eisenhauer v Watertown City Sch. Dist., 39 NY3d 944 [2022]).  By the way, the case has more going on than just constitutional issues, so give it a read.  It has nice language on the autonomy and independence of municipal libraries.

[8] Personally, I didn't think that question was up for debate, but the decision at all three levels of review (Supreme Court, Appellate Division, and Court of Appeals) now leaves no room for doubt.

Perhaps because our nation was born resisting taxes, few things can rile a close-knit community so much as a good old-fashioned tax levy.  This is one area where the legal issues might be simpler than the range of human emotions. 

That said, the laws governing a school district’s support for a library can present significant considerations, if not impediments, before it can be successfully deployed.  So let’s fly at 10,000 feet, and look at the lay of the land.

There are relatively few entity types that can levy taxes based on real property,[1] and school districts are one of them.[2]  In addition to facilitating school funding through those taxes (the school budget “levy”), districts are empowered to raise a separate amount for “library purposes.”[3]

This power to tax for the benefit of libraries comes with some very clear conditions.

First, the amount to be raised for the library must be listed as a separate item on the ballot; the voters must see it as distinct from the funds to be levied for the school(s).[4]

Second, if the proposition passes, the funds must be delivered to the treasurer of the library as soon as possible, and cannot be retained or mingled with district funds.[5]

Third, the amount of taxes attributable to library purposes must be separately stated on each statement of taxes.[6]  Voters should be able to easily discern the difference.

Now, here is where things get really interesting.

There are two ways such a proposition related to a library levy can get on a school district ballot: 1) a vote by library’s board,[7] or 2) a petition directly from the voters.[8]  Since 2007,[9] the precise amount of any proposed levy has to be endorsed by the library’s board[10] (this is so competing or even contrary funding resolutions can’t get on the same ballot[11]).  When a library board votes to request it, the proposition must be placed on the ballot—even if it lacks the support of the school board.[12]

This power can be used to the benefit of any public library: municipal, special district, school district, free association, etc.[13]  This is true even if the precise boundaries of the school district and the library’s chartered area of service don’t match up.[14]

How can that be?  Anyone who follows “library world” knows that there are numerous kinds of libraries: municipal (created by and with the boundaries of a city, town, or village), school district, special district (which can cross and combine municipal borders), and free association.[15]  The permutations of these libraries are vast, but all serve their communities without charge, and thus meet the definition of “library” as used in Education Law §259.  And thus, all qualify as a “library” that may be supported by a tax levy by a school district.

Here is how the New York State Commissioner of Education,[16] quoting an earlier case, put it as recently as 2015:

As stated in Earlville, a school district is among those entities enumerated in Education Law §255 and, thus, is authorized to vote taxes “for library purposes” pursuant to Education Law §259(1)(a).  Earlville noted that, “although only those entities specifically enumerated in Education Law §255 may levy a tax for library purposes under §259(1)(a) [citations omitted], there is no restriction in §259(1) regarding the type of library for which such taxes may be levied.”[17]

Voters, of course, are free to reject the request for support (they can also bring a petition to cease the levy[18]). But the mere act of being asked gives the voters a direct opportunity to consider their community’s overall commitment to educational resources.  In library-philic New York, where we treasure books and learning, this is a critical commitment to education, information access, and community advancement.

It is also a serious vote, since once the levy has been established by the school district, it remains in effect each year until there is a vote to have it removed[19] (which, again, can be initiated by the library’s board, or the voters).

As described by the member, boards considering a school board levy are wise to gather (early) ALL the support they can as they plan for a school board tax levy proposition.  The State Education Department’s Division of Library Development maintains a great starter kit for an initiative.[20]  Reaching out to NYLA, as well as other library advocacy groups, can be critical.  And a lawyer with experience in education law (to help draft resolutions, track the paperwork, and have your back when the unexpected[21] happens) is an essential member of your team.

But while you assemble your team and resources, don’t forget “the people.”  As the famous Tip O’Neall[22] liked to say, “All politics is local.”  So while it’s essential to know a tax levy initiative stands on firm legal ground, nothing replaces careful cultivation of support[23] for your initiative.  That is where the allies listed above, and an attorney looking at the specific circumstances of your library (and always the latest case law), are essential.

Thanks for a great question on a very important topic.  Good wishes for a vote that supports democracy, community, and information access.

[1] They are listed in New York’s Real Property Tax Law, which is a fun read if you are lucky enough to be amused by tax law.

[2] See NY Real Property Tax Law Article 13.

[3] See NY Education Law Section 259(1)(a).

[4] New York Real Property Tax Law, §1322 (1) and §1324.

[5] See New York Comptroller Opinion 92-28, as well as Education Law §259(1)(a) and Real Property Tax Law, §1322 (1) and §1324.

[6] New York Real Property Tax Law, §1322 (1) and §1324.

[7] See Education Law §259(1)(a), and for some good color commentary on the process, see New York State Education Commissioner Decision 15,662, which established that once the tax has been turned over to the library, the taxing authority can’t demand it be returned, even if they have to give a taxpayer a correcting refund.

[8] Education Law §2035(2).  To see how this plays out in the field, check out Education Commissioner Decision # 13,891.

[9] See Bill S03542, 2007.

[10] §239(1)(a), again!

[11] This is due to the law being amended in 2007. The objectives of the amendment are detailed in the legislative “memo” for A05107 (2007). The impact of the changes is also discussed in Education Commissioner Decision 16,765. Buckle up if you explore this avenue…there is some quibbling.

[12] This broad interpretation of the word “library” as used in Education Law §259(1)(a) was established in New York State Education Commissioner Decision 12,423, regarding Earlville Free Library, in 1990.  Although §259(1)(a) was amended in 2007, the approach of “Earlville” as the case in known in library circles, was re-affirmed by the Education Commissioner in 2015 (see Decision #16,765, regarding Jamesville-DeWitt Central School District).

[13] As defined by Education law §253(2), that term includes any library established for “free public purposes by official action of a municipality or district or the legislature….”  Some time is spent on this definition in the “Earlville” decision, referenced above.  Note that the definition does exclude libraries within technical, professional, and public schools.

[14] This was also established in Education Commissioner Decision 12,423, regarding Earlville Free Library (1990).

[15] To say nothing of cooperative and federated libraries.

[16] You’re seeing a lot of citations to the Commissioner here.  That’s because per Education Law §2037, the Commissioner with “exclusive original jurisdiction over all disputes concerning the validity of any district meeting or election.”  See Education Commissioner Decision 14,571 (2001).

[17] Appeal of The Board of Trustees of the Earlville Free Library, 1990 Op Comr Educ No 12423.  It is worth noting that while §259 was amended in 2007 (17 years after Earlville) this principle was upheld in 2015 in Decision 16,765,regardingtheJamesville-DeWitt Central School District.

[18] This is broken down in a great Comptroller Opinion: 1981 N.Y. Comp. LEXIS 726, 1981 N.Y. St. Comp. 176.

[19] See New York State Commissioner of Education Decision 15,002 “Appeal of Beaver Falls Library” (2003), applying Education Law §259(1).

[20] Check out their guide “School Districts and Taxes for Public and Association Libraries: How the Partnership Works” at www.nysl.nysed.gov/libdec/libs/sdtaxes.htim.

[21] I would spend a paragraph or two on what “the unexpected” is, but of course, we can’t expect it!  That said, a good look at Education Commissioner Decisions numbers listed in these vast footnotes answer can give you a flavor.

[22] I just finished his autobiography, “Man of the House.”  An interesting read, and a great primer for anyone wanting an abject lesson about local, state, and national politics. 

[23] Taking care to abide by all restrictions and best practices for libraries and political activity.