Executive Order

2025 has INDEED started off with a great deal of instability to federal programs, funding, and governance. In this answer, we’ll call this phenomenon the “2025 Federal Shift.”[1]

During such times as the 2025 Federal Shift, it is the role of a governing board to assess factors that could risk the achievement of an institution’s mission and develop plans to address them. This is a process called “enterprise risk management.”[2]

While confronting risk can be intimidating, it can also be empowering. And while not every risk can be avoided, it can often be mitigated.[3]

So, whether you’re on the board of a small public library or helping to lead a library within a large institution, now is a good time to inventory newly emerging risks and develop a response plan.

While the array of risks may seem infinite, below please find a chart of risks created by the 2025 Federal Shift. Following that is a chart of institution-specific risks.

Neither chart lists everything facing your institution, but these charts are provided to inspire the start of an orderly, meaningful, and impactful risk management strategy to assist governing boards in performing their fiduciary duties to their institutions.

Top Ten Risk Management Exercises

For Governing Boards of

Libraries and Cultural Institutions

During the 2025 Federal Shift

In addition to the above, below is a chart of specific considerations of the 2025 Federal Shift for library entities:

If you are leading a board and thinking: THIS IS JUST TOO MUCH, don’t worry. Pick the most important one and start there. Then your board can work its way through the others it deems most important.

As leaders, yours is a task of discernment and prioritization. You cannot do it all, but you can do what needs to be done.

Finally, for boards embarking on this type of risk management, a word of caution…

Talking about risk means having a frank discussion about worst-case scenarios. That is not something everyone is comfortable with.[17]

For that reason, it is wise for a board to carefully plan and put in place rules before engaging in the risk management process. Examples of such rules are: set and keep an agenda, set and keep time limits, carefully define what is being discussed, stay on topic, stay solution-oriented, and by the end of the meeting, identify clear actions to take based on your analysis.

In addition, it is wise to consider the possible toll on the humans participating in and potentially impacted by the exercise. To do that, as part of the plan, a board may want to appoint a person (not a board member or the director, nor an employee) to serve as an “human impact observer.” This is a person responsible for noting and then reciting, before the end of the meeting, the human impacts that were raised but not finalized during the discussion, so they can be addressed. This is a way to get things done in “efficiency mode,” while making sure your board can still place a priority on your library’s workers and served community.

And with that, I wish your board good courage, a stout heart, and clear heads for the work to come. Thank you for your service.

Should your institution stop a program designed to attract people from populations under-represented in librarianship to librarianship? NO.[1]

Should your institution submit its DEI program for careful and routine evaluation for legal compliance and effectiveness? ALWAYS.

And now let’s ask: Why is submitting your DEI program for “careful and routine evaluation” important?

In New York, just as in the United States, it is illegal to deny a person a job or educational opportunity on the basis of a “protected category,” such as race, sex, ethnic origin, sexual orientation, veteran status, etc.[2] At the same time, it is legal to intentionally build a workforce or program[3] to meet particular goals, including a goal of addressing the impact of past harms, and/or benefitting from a diversity of experiences and connections.[4]

These two things are true under federal law too, but with New York and the federal government often applying different law and terminology,[5] and with the POTUS now workshopping the term “illegal DEI,”[6] some are questioning if DEI is “illegal” under federal law.

NOW HEAR THIS: DEI is no more illegal, than the concept of “good government” or the principal of “fiscal responsibility.” That is because like “good government” and “fiscal responsibility,” DEI is not a static legal concept. Rather, it is an acronym with no fixed technical meaning from place to place.[7]

So, POTUS notwithstanding, DEI is not “illegal.”[8] That said, a hiring or recruitment program that bars opportunities on the basis of a protected category absolutely could be.

Because of this, at all times (even times that were ten years ago, or more), DEI initiatives (or whatever you want to call them) should be carefully crafted to avoid use of “quotas” and should never use a protected category as a determinative factor to give or deny a benefit. Rather, initiatives to either bring a great diversity of experience and social connections into the workforce, and/or to address the quantifiable impacts of past wrongs, should be tailored to meet specific objectives.

This “tailoring” is the difference between: “We won’t select white people for this internship,” (WHICH WOULD BE WRONG) and “We will seek candidates with confirmed competencies and experience with defined communities,” (WHICH WOULD BE RIGHT).

Because of this distinction, programs designed to bring under-represented groups into a profession or educational experience should focus on measurable outcomes for either the profession, or the people under-represented in it. In addition, those outcomes should actually be measured, with the program adjusted when outcomes are not reaching established goals.

Here is an example of a program and evaluation method that focuses on the benefits to a profession:

EXAMPLE 1: Profession-focused

NAME: Community Connections Library Internship

PURPOSE: The purpose of this internship is to attract to librarianship people to from communities currently under-represented in the profession. The objective of this effort is to ensure the future stability and value of libraries by keeping them connected to the communities they serve. In [REGION], these communities are located in [DEFINED AREAS] (“Under-Represented Areas”). For that reason, past library experience is not needed for this internship, but direct experience and connections with communities in Under-Represented Areas, and an interest in librarianship, are.

APPLICATION QUESTIONS:

• Please tell us about your connections to a community in an Under-Represented Area.
• Please tell us about a strength you have from your connection to that Under-Represented Area.
• Please tell us how you think a librarian from the Under-Represented Area could benefit that community.
• This internship does not require you to become a librarian, but we will solicit feedback about your career path in the years after you complete the internship. Do you agree to that?

RUBRIK FOR ANNUAL EVALUATION

• What are the Under-Represented Areas? (Has there been a population change requiring adding/subtracting?)
• How many applications were received?
• How many positions were awarded?
• Of past interns, how many applied to library school?
• Of past interns, how many are currently in library school?
• Of past interns, how many are working in a library?
• Is the program reaching a broad applicant pool?
• Should the program be continued the next year?

Now, here is an example of a program and evaluation method that focuses on addressing the lingering impacts of past wrongs:

EXAMPLE 2: Impact-focused

NAME: Going Forward Library Internship

PURPOSE: While the required advanced degree and commitment to public service makes the path to librarianship a challenge for any person, a legacy of unequal treatment under the law can create additional barriers to pursuing a career in librarianship. The purpose of this internship is to assist future professionals whose path to librarianship may be made more difficult by the lingering effects of legal inequities experienced by their family and community (including but not limited to war crimes, housing discrimination, denial of veteran benefits, forced relocation, treaty violations, educational segregation, discriminatory hiring). While past unequal treatment under the law cannot be undone, this internship seeks to counter lingering negative impacts by creating a defined opportunity to explore a career in librarianship for people so impacted and bring their unique strengths and perspectives into the profession.

APPLICATION QUESTIONS:

• Please tell us how your family has been negatively impacted by legal inequities.
• Please share how this impacted your family and how those impacts are still creating challenges today. NOTE: We appreciate that this may also be an answer that celebrates the strength of your family and community.
• We believe that families and communities with ties to a librarian and library are stronger than those without such ties. Please comment on this.
• This internship does not require you to become a librarian, but we will solicit feedback about your career path in the years after you complete the internship. Do you agree to that?
• Please share how you believe this opportunity could help you consider librarianship as a career.
• Please let us know what else our organization could do to assist you on the path to librarianship.

RUBRIK FOR ANNUAL EVALUATION for Impact-Focused Approach

• How many applications were received this year?
• How many positions were awarded this year?
• How many interns has the program had, to date?
• Of past interns, how many have applied to library school?
• Of past interns, how many are currently in library school?
• Of past interns, how many are working in a library?
• How was the opportunity publicized this year?
• What communities in our area of service are we enhancing our connections to because of this program?
• Should the program be continued next year?
• What ongoing connections and support do we offer to program participants after the experience?

So, to repeat: should your organization end your DEI initiatives? Only if your leadership believes they no longer have value. However, whether starting or continuing a DEI program,[9] it is important to use defined outcomes, tied to measurable benefits related to the purpose of your organization, to craft a program that doesn’t simply admit or deny opportunity on the basis of a protected category.

For this, careful thought and analysis of the final criteria and evaluation process by your lawyer has always been, and remains, important.

Thank you for an important question.

SUMMARY

The flurry of executive orders issued at the start of the 2025 POTUS term creates many immediate and emphatic changes to federal executive policy. Many of these orders also lay the groundwork for further changes, many of which could directly impact the libraries and library-containing organizations listed above.

Particularly notable impacts, and notable non-impacts (despite the risk of an appearance otherwise), on ESLN-served entities are:

1. The first EO issued on January 20th rescinded EO 14084, which created the federal government’s Institute of Museum and Library Service’s “President’s Committee on Arts & Humanities.”

The full text of that rescinded order is below the analysis so that the full impact of this recission may be discerned.

Organizations representing libraries at the federal level may want to identify the potential impacts and take action to address potential negative impacts of this recission.

2. The first EO issued on January 20th rescinded Executive Order 14021 of March 8, 2021 (Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity).

This rescission, together with other directives in newly issued EOs, are consistent with the U.S. Department of Education’s Office for Civil Rights (“OCR”) January 24th dismissal of eleven complaints related to removals of library materials based on the identity of the author or nature of the subject matter. In a press release regarding the dismissals, the United States Department of Education stated, “Because this is a question of parental and community judgment, not civil rights, OCR has no role in these matters.”

The characterization of removal of library content as “not civil rights” is contrary to law, regulations, and case law in New York, as well as current federal law and case law.

3. Many of the new EOs address definitions, place names, and records.

Archivists, municipal clerks, academic librarians, law librarians, and others should consider the impact on cataloging, displays, and research; supporting organizations should be ready to offer meaningful guidance.

4. The first EO issued on January 20th rescinded EO 13989 of January 20, 2021 “Ethics Commitments by Executive Branch Personnel.”

ESLN members who engage in federal lobbying, or who have lobbyists under contract, should consider the impact of this change.

5. Many of the new EOs address stepped-up enforcement and new measures for deterring illegal immigration.

Organizations in New York should continue to follow current protocols for responding to warrants and requests for information.

Library records in New York remain confidential under CPLR 4509; this right to privacy is not rooted in citizenship, visa status, or conviction status.

Organizations in localities that adopted stances limiting cooperation with federal immigration enforcement to only that which is required by law (“sanctuary” jurisdictions) should prepare for the possibility of enhanced scrutiny.

6. Many EOs refer to enhanced and altered use of the military to address illegal immigration.

Institutions should ensure military service leave policies are up to date in the event reservists are deployed; institutions employing military spouses should be alert to the need for supports.

7. Many EOs attempt to alter and/or terminate federal policy and funding incorporating the concepts of “Diversity, Equity and Inclusion.” However, in New York, such programs and funding may be blended with objectives and funding based on New York State Law.

Institutions should evaluate federal programs and funding carefully; boards should take appropriate steps to address risks to funding.

8. It is my observation that the tone and timing of the EOs is designed to create apprehension and perhaps panic. While concern based on the stability of federally funded initiatives is warranted, institutions should take a careful inventory of their vulnerabilities and develop mitigating strategies.

Institutions should inventory actual risks posed by the policy changes and use clarity of information to stay focused on mission while engaging in risk management.

To avoid the negative impacts that could be created by misunderstanding of the EOs, institutional leaders and employees should be trained on the following:

• The manner of responding to law enforcement requests/demands for information remains the same (when in doubt, call your lawyer);
• Library records remain confidential unless demanded via duly authorized subpoena or warrant;
• Any perceived risk to federal funding should be carefully assessed prior to any action being taken; and
• The definitions in the New York Human Rights Law (some of which are in your institution’s policy barring Sexual Harassment) remain unchanged.

USING THE EO ARRAY

The EO Array presents the EOs issued and rescinded between January 20 and January 24, 2025.

EOs setting policy beyond rescinding previous EOs start on page 18.

Where significant change is made, it is noted in commentary.

Where state and local law will preserve the status quo, it is noted in commentary.

Where change or uncertainty may be created, warranting stepped-up attention by potentially impacted institutions, it is noted in commentary.

Areas of actual or potential high impact on ESLN-served entities, warranting particular attention, are highlighted in yellow.

When possible, EOs covering the same topic area, or interrelated areas, are bulleted together for coherence and efficiency (climate, immigration/border, COVID, etc.).

ARRAY OF EXECUTIVE ORDERS

***END OF RECISSION LIST***

Executive Order 14084—Promoting the Arts, the Humanities, and Museum and Library Services

September 30, 2022

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1. Policy. The arts, the humanities, and museum and library services are essential to the well-being, health, vitality, and democracy of our Nation. They are the soul of America, reflecting our multicultural and democratic experience. They further help us strive to be the more perfect Union to which generation after generation of Americans have aspired. They inspire us; provide livelihoods; sustain, anchor, and bring cohesion within diverse communities across our Nation; stimulate creativity and innovation; help us understand and communicate our values as a people; compel us to wrestle with our history and enable us to imagine our future; invigorate and strengthen our democracy; and point the way toward progress.

It is the policy of my Administration to advance the cultural vitality of the United States by promoting the arts, the humanities, and museum and library services. To that end, my Administration will advance equity, accessibility, and opportunities for all Americans, particularly in underserved communities as defined in Executive Order 13985 of January 20, 2021 (Advancing Racial Equity and Support for Underserved Communities Through the Federal Government), so that they may realize their full potential through the arts, the humanities, and access to museum and library services. Additionally, we will strengthen America's creative and cultural economy, including by enhancing and expanding opportunities for artists, humanities scholars, students, educators, and cultural heritage practitioners, as well as the museums, libraries, archives, historic sites, colleges and universities, and other institutions that support their work.

Under my Administration, the arts, the humanities, and museum and library services will be integrated into strategies, policies, and programs that advance the economic development, well-being, and resilience of all communities, especially those that have historically been underserved. The arts, the humanities, and museum and library services will be promoted and expanded to strengthen public, physical, and mental health; wellness; and healing, including within military and veteran communities. We will enhance access to high-quality arts and humanities education and programming with the aim of enabling every child in America to obtain the broad creative skills and enrichment vital to succeed. My Administration's efforts to tackle the climate crisis will be bolstered through Federal and societal support for and advancement of the arts, the humanities, and museum and library services. We will also safeguard and promote the artistic and cultural heritage of the United States and its people domestically and internationally. Finally, my Administration will strengthen our Nation's democracy, increase civic engagement and public service, bolster social cohesion, and advance the cause of equity and accessibility by lifting up more—and more diverse—voices and experiences through Federal support for the arts, the humanities, and museum and library services.

Sec. 2. The President's Committee on the Arts and the Humanities. (a) There is established within the Institute of Museum and Library Services (IMLS) the President's Committee on the Arts and the Humanities (Committee) to inform and support the national engagement with Americans necessary to advance the arts, the humanities, and museum and library services.

(b) The Committee shall be structured as follows:

(i) The Committee shall be composed of the Chairperson of the National Endowment for the Arts (NEA), the Chairperson of the National Endowment for the Humanities (NEH), the Director of the IMLS, and no more than 25 additional persons who are not full-time officers or employees of the Federal Government (non-Federal members) who shall be appointed by the President. The non-Federal members:

(A) shall be selected from among private individuals and State, local, and Tribal officials;

(B) shall have a diversity of backgrounds, experiences, and areas of expertise; and

(C) shall have a demonstrated interest in and commitment to support for the arts, the humanities, and museum and library services.

(ii) The Librarian of Congress, the Secretary of the Smithsonian Institution, the Director of the National Gallery of Art, and the Chairman of the Board of Trustees of the John F. Kennedy Center for the Performing Arts shall be invited to serve as additional, non-voting members of the Committee.

(iii) The President shall designate a Chair or two Co-Chairs from among the non-Federal members of the Committee.

(c) The Committee shall be solely advisory and shall provide recommendations to the President and the heads of the NEA, NEH, and IMLS on:

(i) advancing the policy objectives set forth in section 1 of this order, including with respect to community well-being; economic development and mobility; public, physical, and mental health; education; resilience and adaptation, as well as combatting climate change; civic and democratic engagement; and support for the artistic and cultural heritage of the United States;

(ii) promoting philanthropic and private sector engagement with and support for the arts, the humanities, and museum and library services to advance the policy objectives set forth in section 1 of this order;

(iii) enhancing the effectiveness of Federal support for the arts, the humanities, and museum and library services to advance the policy objectives set forth in section 1 of this order; and

(iv) catalyzing the engagement of the Nation's artists, humanities scholars, cultural heritage practitioners, and leaders in the arts, the humanities, and museum and library services, including with respect to:

(A) engagement in significant cultural events; and

(B) promoting the recognition of excellence in the arts, the humanities, and museum and library services, and their relevance to our Nation's social and economic well-being.

(d) The Committee's recommendations pursuant to subsection (c) of this section shall be conveyed in accordance with subsection (g) of this section.

(e) The Committee shall be administered as follows:

(i) The IMLS shall provide funding and administrative support for the Committee, including facilities, staff, equipment, and other support services, to the extent permitted by law and subject to the availability of appropriations. Private funds accepted under the IMLS's gift authority may be used to pay expenses of the Committee, as appropriate and consistent with applicable law.

(ii) The Director of the IMLS may designate an Executive Director to coordinate the work of the Committee. The Executive Director shall report to the Director of the IMLS and shall meet with all of the heads of the NEA, NEH, and IMLS on a quarterly basis.

(iii) Members of the Committee shall serve without compensation for their work on the Committee, but shall be allowed travel expenses, including per diem in lieu of subsistence, as authorized by law for persons serving intermittently in the Government service (5 U.S.C. 5701-5707).

(f) The Committee shall meet twice a year.

(g) On an annual basis, and at other times as appropriate, the Chair or Co-Chairs of the Committee shall report to the President through the heads of the NEA, NEH, and IMLS on the Committee's progress in carrying out its mission, any recommendations it has, and its plans for the coming year.

(h) Insofar as the Federal Advisory Committee Act, as amended (5 U.S.C. App.), may apply to the Committee, any functions of the President under that Act, except that of reporting to the Congress, shall be performed by the Director of the IMLS, in consultation with the heads of the NEA and NEH, and in accordance with guidelines issued by the Administrator of General Services.

(i) The Committee shall terminate 2 years from the date of this order, unless extended by the President.

Sec. 3. Interagency Cooperation to Advance the Arts and Humanities. (a) The heads of executive departments and agencies and White House policy councils, including those listed below, or their designees, who must be senior officials, shall advise, coordinate with, and consider undertaking joint projects and initiatives with the heads of the NEA, NEH, and IMLS, as appropriate and consistent with applicable law, to advance the policy objectives set forth in section 1 of this order:

(i) the Department of State;

(ii) the Department of the Treasury;

(iii) the Department of Defense;

(iv) the Department of Justice;

(v) the Department of the Interior;

(vi) the Department of Agriculture;

(vii) the Department of Commerce;

(viii) the Department of Labor;

(ix) the Department of Health and Human Services;

(x) the Department of Housing and Urban Development;

(xi) the Department of Transportation;

(xii) the Department of Energy;

(xiii) the Department of Education;

(xiv) the Department of Veterans Affairs;

(xv) the Office of Management and Budget;

(xvi) the Small Business Administration;

(xvii) he General Services Administration;

(xviii) the Corporation for National and Community Service;

(xix) the National Institutes of Health;

(xx) the National Science Foundation;

(xxi) the Domestic Policy Council;

(xxii) the National Economic Council;

(xxiii) the Gender Policy Council;

(xxiv) the White House Climate Policy Office; and

(xxv) the Office of Science and Technology Policy.

(b) The heads of agencies described in section 3502(5) of title 44, United States Code, are encouraged to comply with the provisions of this section.

(c) The heads of the NEA, NEH, and IMLS shall consider joint initiatives that would further the policy objectives set forth in section 1 of this order, and then may carry out those initiatives to the extent permitted by law.

Sec. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

JOSEPH R. BIDEN JR.

The White House,

September 30, 2022.

First question: Yes...with the expiration of the Executive Orders on June 24th, including the Order modifying the Open Meetings law,[1] things are "back to normal."

Or, as the Committee on Open Government, the authority on the State's Open Meetings Law (OML), put it:

So, does this mean "trustees who still want/need to attend remotely from home must disclose their address in the meeting notice?"

Various case law and commentary about the OML has confirmed that when a public body needs to meet via teleconference, the public must be able to attend from any remote location "calling in" to the meeting, and that location should be part of the meeting notice.[2]

Or, as the COOG put it in Advisory Opinion 5535 in 2018:

"So long as the public is permitted to attend at any location at which a member participates and can observe the members wherever they may be, I believe that the members may participate and be counted for purposes of attaining a quorum and for voting, and that a meeting may validly be held." [emphasis added]

For large public bodies such as the Regents, the New York Power Authority, and other entities that must hold publicly accessible meetings, and whose board members may reside in far-flung areas of the state, the use of publicly accessible call-in sites comes with an IT team and a budget.

For a public library, whose members generally reside within that library's area of service, this "back to normal" pretty much means that you're back to meetings in person.

Of course, under the Not-for-Profit Corporation law (which, along with the Education Law, governs the conduct of library meetings), a library board of trustees is allowed to conduct meetings telephonically.[3]  When coupled with the requirements of the OML, however, that latitude is severely reigned in--since whatever space is used for the remote call-in must be accessible to the public, and included in the notice.

For this reason, unless a library trustee is very comfortable inviting the public into their home, I advise against using the "dial in from home" option.[4]

NOTE:  This answer does not consider if a trustee needs to attend remotely due to it being an accommodation under the ADA.  That is a separate and critical question; for now, I'll simply say that adherence to the OML should not rule out consideration of ADA issues.

The transparency created by Education Law 260-a's requirement that public libraries abide by the Open Meetings Law is laudable--but is also based on older notions of technology.  Now that the State of New York has lived under different rules for over a year, we might see some changes in legislation.

But for now, we're "back to normal."

I hope this is helpful.

[1] Allowing them to be held via teleconference so long as the meeting is accessible to the public, recorded, and transcribed.  For more comments on this, see "Ask the Lawyer" Executive Order 202 and NY Open Meetings Law and Open Meetings Law and COVID.

[2] See https://docs.dos.ny.gov/coog/otext/o5535.html and https://docs.dos.ny.gov/coog/otext/o5575.html.

[3] See NFPCL Section 708(c) "Unless otherwise restricted by the certificate of incorporation or the by-laws, any one or more members of the board or of any committee thereof who is not physically present at a meeting of the board or a committee may participate by means of a conference telephone or similar communications equipment or by electronic video screen communication. Participation by such means shall constitute presence in person at a meeting as long as all persons participating in the meeting can hear each other at the same time and each director can participate in all matters before the board, including, without limitation, the ability to propose, object to, and vote upon a specific action to be taken by the board or committee."

[4] I recently saw a very good presentation on parliamentary procedure for library boards.  The presenter commented that disclosure of home addresses should not be made, due to safety concerns.  I absolutely agree with that caution, but must emphasize that if a trustee calls in from a remote location, with the emergency modification of the law over, the OML requires that all "locations" of the meeting (including a remote call-in site) must be disclosed.

Since the onset of the pandemic, we have had two questions about the impact of Executive Orders on the Open Meetings Law.

The first question, back in March 2020 (remember March 2020?  Ugh.), led to this advice:

... the method you select for sharing the meeting in real time (livestreaming, a broadcast) should be accessible to the general public.

Of course, by Fall 2020, we all became experts at these modified proceedings, and were asking refined questions like:

How long does a library (public or association) or a cooperative public library system have to keep the recording of board or committee meetings?

(Answer: until transcribed.)

This brings us to December, 2020.

On December 2, 2020, the Governor issued Executive Order 202.79,[1] continuing the suspension and temporary modification of the Open Meetings Law through January 1, 2021.[2]  So here we are, still meeting under modified circumstances.[3]

Which brings us to the member's question:

[Does] allowing the meeting to be simultaneously on Zoom ... satisfy the requirements of open meetings law even though only one member of the public would be able to be physically present in order to stay under the 10-member cap for small gatherings[?]

Answer: Yes.

Here is why I can answer this question with one-word confidence.

Back in August, 2020 (remember August, 2020?  Slightly less "ugh.") the Executive Director of the State Committee on Open Government, realizing that different areas have different COVID numbers and are facing different Open Meetings Law compliance challenges, wrote in an Advisory Opinion:[4]

...if a public body is convening an essential meeting, the body must ensure that it adheres to social distancing, masking, and any other administration requirements, and if there is any question about whether it is able to maintain a safe space in which to hold an essential open meeting, it must provide a contemporaneous video or audio broadcast such that members of the public who cannot safely attend in person “ha[ve] the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed.”

Further, the Advisory Opinion went on to emphasize that room capacity and safety concerns should not impede public access to an OML-accessible meeting. "[A] public body may not artificially limit attendance at its meetings – to do so would not be consistent with the requirements of the Open Meetings Law."

The solution posed in the question submitted by the member adequately addresses this concern.   By enabling observation and attendance via Zoom, the proceeding will be virtually accessible even though it has been physically convened.  The key is ensuring access at a time of modified operations.

And what do we do when Executive Order 202.72 expires?

We'll see in the New Year!

Thanks for a thoughtful question, I wish you a productive and safe meeting.

[1] https://www.governor.ny.gov/news/no-20279-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency.

[2] If you'd like to follow the daisy-chain of executive orders on this, here goes: Executive Order 202.1 first suspended/modified the Open Meetings Law Requirements, and then Executive Orders 202.14, 202.28. 202.38, 202,48, 202.55, 202.60, 202.67, and now, 202.72, kept that suspension/modification going.

[3] There are several legal challenges under way, based on the ability of the Governor to continue the state of emergency and resulting Executive Orders.  I am not commenting on that.

[4] Found at https://www.dos.ny.gov/press/2020/Essential%20Meeting%20OML%20AO.pdf

Before attempting to answer this one, my team and I looked to see if anyone else "out there" has tackled this question.

We scoured the usual places (NYS Empire Development's COVID site, Committee on Open Government, NY Archives, NYLA, etc.), but my staff and I didn't find anything right on point. That said, the COVID landscape changes fast, so please let us know if you find anything, and we'll post an update to this answer.

And with that shameless disclaim/plea on the record, here is my answer:

As I read it, the currently-governing Executive Order[1] requires an entity subject to the Open Meetings Law to keep the recordings until they have been transcribed—not just until the minutes have been created.

Here is my reasoning: Executive Order 202.1[2] changed the Open Meetings Law as follows:

...to the extent necessary to permit any public body to meet and take such actions authorized by the law without permitting in public in-person access to meetings and authorizing such meetings to be held remotely by conference call or similar service, provided that the public has the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed. [emphasis added]

Although the normal application of the LGS-1 would allow for the recording to be erased upon creation of the minutes—just as the member points out—the Executive Order is an overlay that super-cedes (or at least, exceeds) normal record-keeping requirements.

I realize this means a library that can't afford to transcribe the recording any time soon will have to keep the audio around.  It's possible that the state, after considering the fiscal reality of the conditions the "later transcribed" condition imposes, may eventually tinker with the requirement, perhaps simply insisting the audio be retained for a certain time after the minutes are generated.[3]

I am leaning on the side of retention, and not taking the easy way out by swapping it out for creating minutes, because access to the process, in all its glory, is the default purpose of the law.  Further, Committee on Open Government Advisory Opinion has stated that while masks and social distancing remain requirements, entities subject to the Open Meetings Law must be making the proceedings contemporaneously available via audio or video[4].  So with all that, I have to err on the side of retention, access, and transparency.

Fortunately, digital sound file storage is not too costly these days.[5]

Thank you for a thoughtful question.

[1] Found at https://www.governor.ny.gov/news/no-2021-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency [NOTE: This link was confirmed as no longer active and removed on 02/25/2022 as part of the routine review of "Ask the Lawyer" materials.]

[2] Which as of this writing, is extended through December 3, 2020, by Executive Order #72, found on 11/17/20 at https://www.governor.ny.gov/news/no-20272-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency [NOTE: This link was confirmed as no longer active and removed on 02/25/2022  as part of the routine review of "Ask the Lawyer" materials.]

[3] This sounds like a nice ask to go out from a library advocacy organization.   "Please, Mr. Governor, can you waive the estimated $[AMOUNT] in estimated transcription fees incurred the same year when many localities are taking COVID-induced hits to their budgets?"  I'd sign that letter in a heartbeat.

[4] Found at https://www.dos.ny.gov/press/2020/Essential%20Meeting%20OML%20AO.pdf [NOTE: This link was confirmed as no longer active and removed on 02/25/2022  as part of the routine review of "Ask the Lawyer" materials.]

[5] Finding the budget to properly compensate qualified people to manage that storage is another question!

As a prelude, readers may want to take a look at an earlier COVID-19-era “Ask the Lawyer” about library elections postposed per Executive Order 202.12, which ends with this promise:

“If and when we get an update or “further directives,” we’ll post any update to this answer.”

As you can see, it took a few weeks, but we got those “further directives” on Friday, May 1, 2020,[1] in Executive Order 202.26.

Libraries don’t miss much.  On Monday[2] May 4^th, we also got the above follow-up question.

So here is the promised update, and my answer to a conundrum like the one this “further direction” creates for the asking library.

But first…

If there is one thing providing this service to hundreds of libraries has taught me, it’s that running a library is hard.  And running a public library comes with an overlay of regulations and community politics that makes a hard job harder.

So for those libraries out there finding that this issue of rescheduled budgets and elections is making a hard job harder, I say: yes, it is.  The strain on your communities, staff, and leadership is growing every day, and it’s important to acknowledge that. 

Sometime, in the pressure of the moment, it can be hard to say that.  So, for libraries seeking a default way to unite and raise the spirits of your staff, leadership, and allies in information and community service, I suggest the following “2020 NY Libraries Chanty.”[3] Gather your board,[4] staff, and/or supporters on a Zoom call, or a teleconference, have them all face the direction of the library (this is important, even if you can’t see each other!), and recite:

It’s 2020. 

The books are still here. 

People still need us. 

These challenges are hard,

but we got this.

You can also add your own custom lyrics, like:

Located in a sunny glen

New Hartford Library faces ahead

Times are hard, the Town is strong

We’ll do yoga[5] here again ere long.

The importance of simple, affirmative, repeated affirmations like a chanty--or simply repeating a mission statement at the beginning and end of a meeting--can’t be over-stated--especially at this time. 

Further, since the notion of “normal” is starting to shift, it is vital that the slowly materializing “new normal” be infused with a united vision of a strong, community-focused, mission-forward library. 

This can be easy to overlook in the midst of emergency budget meetings and communicating about emergency closure.  A simple song or phrase, regularly repeated, can be a key component in buoying spirits and plotting a course for the future.

(And if you do craft a custom message, have a contest, because I bet your local youth can come up with better verses than I can.)

Okay, with the light verse out of the way, here is the hard stuff:

Timing of a School District Library Election

As you may recall, Executive Order 202.12 stated:

Any school board, library board, or village election scheduled to take place in April or May of 2020 is hereby postponed until at least June 1, 2020, and subject to further directive as to the timing, location or manner of voting for such elections.

So what does 202.26’s “further directive” do?  First, it expands on the impacted elections (seemingly including ALL of them, not just those set for May or June, as in 202.12), and as the member writes, seems to give only two timing options for conducting your votes.

This timing is found near the end of the Order, which states through May 31, 2020:

Any district or special district, including, but not limited to fire, library, sewer, or water, that conducts an election and/or budget vote shall be rescheduled to September 15, 2020 and collection of signatures for nominating petitions is hereby suspended until further notice, subject to a process determined by a future Executive Order; provided however, a library district may conduct an election on June 9, 2020 pursuant to this Executive Order if such election is managed by a school district.

However, a careful reading of the context of above-excerpted language[6] shows that those particular bullet of 202.26 only applies to “through May 31,” and that it pertains to “any district or special district” library.

In the meantime, earlier in this voluminous Executive Order (nine bullets deep), it states:

…[P]ublic libraries established and supported by a school district [may] re-notice an election noticed pursuant to this section. Such election and/or budget vote shall be conducted via absentee ballot in conjunction with the school district’s rescheduled absentee ballot process or independently using the guidelines created for the school district’s absentee ballot process. Such a vote may be managed by the school district or the library, at the library’s request.

If you had eight cups of coffee the day you read it, you may recall that in the answer discussing EO 202.12, we discussed that the EO did not impact all school district library elections, since by law, those have to happen before July 1, and 202.12 only covered elections through May.

This detail now comes roaring back into relief as we dissect EO 202.26.  Upon a close analysis, it can be seen that this Order gives school district public libraries more latitude than district and special district libraries, in paragraphs such as:

Sections 259 and 260 of the Education Law are hereby modified for any library election held on or before July 1, 2020, to eliminate any requirement for an application to access an absentee ballot, and each such eligible voter shall be mailed an absentee ballot with a postage paid return envelope.

If school district public library votes limited to the June 9/September 15 options open to district and special district libraries, this bullet about “any” election before July 1 would be unnecessary.

What does this mean?  Well, as the Order says:

Such election and/or budget vote shall be conducted via absentee ballot in conjunction with the school district’s rescheduled absentee ballot process or independently using the guidelines created for the school district’s absentee ballot process.

Remember, both EO 202.12 and 202.26 modify Section 260 of the Education law, which (among other things) creates special rules for election and votes pertaining to school district public libraries. 

Section 260 provides:

7. The board of trustees of a public library established and supported by a school district shall, in addition to powers conferred by this or any other chapter, be authorized in its discretion to call, give notice of and conduct a special district meeting for the purpose of electing library trustees and of submitting initially a resolution in accordance with the provisions of subdivision one of section two hundred fifty-nine of this chapter. Such meeting shall be held prior to the first day of July but subsequent to the first day of April. Should the board of trustees of the library determine, in its discretion, not to notice and conduct such a meeting, then the election and budget vote will be noticed and conducted by the board of education of the school district as part of its annual meeting.

EO 202.12 did postpone any elections set for April or May (not June!), but left many details about petitions, notice, and voting for “further directive.” 

EO 202.26 now gives those further directions, and modifies Section 206 further to require a vote to happen either

…in conjunction with the school district’s rescheduled absentee ballot process or independently using the guidelines created for the school district’s absentee ballot process.

Further, the EO honors the autonomy of a school district public library by providing:

Such a vote may be managed by the school district or the library, at the library’s request.

What does this mean for a school district public library? 

First, they must work with their sponsoring district to obtain a copy of the guidelines developed for the absentee vote.

Second, they must decide if they have the capacity to manage the vote, or should request the district to manage it.

Third, if the library can manage it independently, they must abide by Education Law 206 and properly notice (or, as authorized, re-notice) and conduct the election and budget vote, per the guidelines adopted by their district, before July 1.

I see no provisions in Executive Order 202.26 limiting school district public library elections and budget votes to the June 9 or 15th dates. 

This might seem to be in contrast to the plain language of EO 202.26’s fourth-from-last bullet, which states: “provided however, a library district may conduct an election on June 9, 2020 pursuant to this Executive Order if such election is managed by a school district.”

However, that fourth-from-last bullet does not apply to school district public libraries—it applies to “library districts.”  Any other interpretation goes expressly against language in the ninth bullet stating that school district public libraries are expressly confirmed as having the authority to run their own election.

So unless we get an even further directive, or the state realizes they created an unintentional hole in the process here, it is clear that school district public libraries still have the authority to conduct their elections before July 1^st…so long as they abide by the guidelines developed by their district for absentee voting.

I take this position on May 5, 2020, with a great deal of confidence, but must still acknowledge that I am out on a limb. These Executive Orders are constantly being revised and clarified by subsequent Executive Orders (202.26 “clarifies” 202.23’s provision about absentee ballots in its final bullet).  So while I believe this interpretation makes sense both under the law and within the borders of the document itself, school district public libraries scheduling, noticing and conducting their elections should conduct a clear, explicit, documented discussion with their sponsoring districts to make sure they agree that this is the way to proceed.

And we should all keep our eyes open for further clarification!

Trustee Election

Executive Order 202.26 also contemplates that getting candidates’ petitions over the finish line might be a little tough this year, so in that same “ninth bullet” devoted to school district public libraries, it provides:

Furthermore, the same provisions that are made for a school board trustee’s petition shall apply to a library board trustee’s petition.

These “provisions” for trustees’ petitions are in bullets[7] seven and eight:

• Sections 2018, 2032, and 2608 of the Education Law to the extent necessary to allow candidates be listed on ballots alphabetically, and that ballots for small city school districts shall be set 30 days before the election;
• Sections 2018 and 2608 of the Education Law to the extent necessary to eliminate any minimum threshold of signatures required, provided, however, an individual must meet any other requirements necessary to be placed on the ballot, including any applicable residency and age requirements;

The member asks “since we do not currently have any petitions filed for the open seat” should they simply appoint trustees, per their bylaws, until the next election?

These are incredibly unique (and hopefully rare!) circumstances, but remember, even at this unusual time, Section 206 (7), except as modified by Executive Order, governs school district public library elections.

That law specifically states:

Should the board of trustees of the library determine, in its discretion, not to notice and conduct such a meeting, then the election and budget vote will be noticed and conducted by the board of education of the school district as part of its annual meeting. [emphasis added]

This does not appear to be an “optional” process, and no active EO has changed it.  Therefore, if a school district public library does not conduct required election, the district must. 

Resorting to a bylaws appointment or deciding not to conduct the election is not an option.

Given all that, and considering the unique circumstances for 2020—incuding the newly relaxed requirements regarding trustee petitions—I advise that before not proceeding with an election process (and thus triggering mandated school district management of one), the board coordinate the quest for trustees with its overall response to the current situation. 

In other words, just like with all trustee recruiting, this is an opportunity to promote the mission of the library, and to recruit qualified people to help in the times ahead.

Here is a template recruitment notice for such an effort, referencing the current relevant Executive Orders, which could be modified for your library, and pushed out in both local media and on social media as well as the library's website:

Greetings from the [NAME] Library. 2020 has been an extraordinary year. In addition to changing our life in many ways, it has impacted the ability of potential trustees to petition to serve on the library's board of trustees (see Governor’s Executive Order 202.12).

Trustees play a vital role in our library: defining library policy, overseeing the budget, and deciding the library’s strategic directions.

The [NAME] Library’s current election, which due to emergency circumstances and per Executive Order 202.26 will be conducted via mail-in ballot, is scheduled for a [DATE]. If you are interested in serving as a library trustee, executive order 202.26 has changed the requirements, and now no signatures are required to put your name on the ballot.

If you are interested in submitting your name for election to this position , please [INSERT LOCAL GUIDELINES].

Service on the [NAME[] Library will be essential as our community recovers from the restrictions caused by COVID-19, and the years ahead. To help us serve that need, we seek candidates who know the community, who [INSERT BYLAWS’ TRUSTEE CRITERIA] and who believe that access to information and shared services will be a vital part of our recovery and the years ahead.

A final word: just like in the last answer regarding postponed elections, I must emphasize: if you can, now is the time for your school district public library to find a local lawyer to assist with your process, just to have back-up during uncertain times. 

I am always happy to get calls from local attorneys to strategize on these issues; sometimes local circumstances can throw a curve ball at an otherwise straightforward situation…and this situation is anything but straightforward!

School district public libraries: I wish you good luck in your recruitment, your elections, and your budget votes. 

[1] A day when many of us learned our children would not be return to school for the 2020 Spring semester.  So…not quite a “day that will live in infamy,” but definitely the day my law office receptionist got a new “duty as assigned”: remote kindergarten substitute teacher.

[2] May the fourth be with you.  Especially now.

[3] A “chanty” is a song sung (usually at sea) by people doing hard work together. Don’t worry, first amendment fans, this one is completely secular!

[4] If you gather the board this way, send a notice, since the notice provisions of the Education Law and the Open Meetings Law are still in effect.

[5] My Mom’s gentle yoga class at New Hartford Town Library has been on hold.

[6] Which, if you’re reading along with the Order, is four bullets from the end…jeez, I wish they’d number these things…

[7] “Bullet” sounds so punchy.

This question is from a school district public library.  Before answering it, I called the library director who sent it in.

Why?  Well, first, I wanted to introduce myself.  When a question has a lot of nuance and potential long-term ramifications, I like the member to know the answer comes from a real human being, not just a faceless attorney in Buffalo, NY.

Second, I wanted to check in on some details.  As other school district public libraries can attest to, the minutia of elections and budget votes can get very technical—as well as personal (and sometimes passionate). Getting those details right is both an art and a science.

And finally...I'm not gonna lie. Sitting alone in my office, with my treasured staff working from home, cut off from our normal busy but generally cheery atmosphere, I might have been a tad lonely.  Although anyone who works with me will tell you that half the time I am working in an introverted and ADD-infused cloud, four weeks of pandemic isolation have taken their toll. It was nice to call the member and connect at a human level.

How did the conversation go? I'll keep that part confidential.

Let’s take a brief aside to review the “Ask the Lawyer” model.

For members who use “Ask the Lawyer,” there are often two concrete results from the submission of the question:

The most common result is a post to the “Recently Asked Questions” (“RAQ”) site, which will contain generic guidance with no identifying details, so a general assessment of the legal issue can be shared with the largest possible impacted library community.

The second result, which doesn't occur for every question (but it's still pretty frequent) is a “confidential memo” just for the member and their council.  This “confidential memo” supplements the general input with confidential legal advice, and lets us address any unique details that pertain to only that member.

This is how the 3R’s maximize the resources (legal fees) used to get the legal guidance and advice, while also enabling timely services to their members.  And as I’ve reviewed, it is also how lonely attorneys can occasionally arrange a phone call to socialize about a legal need during pandemic-imposed isolation.

So, again…how did the conversation with the member go?  As I said, it’s confidential. But let's just say, when I call a librarian, I expect some good conversation, and this member did not disappoint.

And with that, here is my generic “Recently Asked Questions” input on this situation:

The first priority in assessing any matter related to an election or budget vote is to consider any past extraordinary details—such as a previous controversy or contested procedures.  As they say in the “Music Man”: You gotta know the territory.[1]  If there has been any past issue or hostility, planning to navigate a postponed election with those sensitivities in mind is wise.

Next (and this is essential), is setting up to ensure consistent and well-communicated support about the election from leaders and stakeholders: in this case, the board, the staff, the library’s system, the local school district, and (even if the election is not in their purview) the county Board of Elections.  This includes communication about the postponement, and the re-set proceedings.

Why is this a critical step? When you're sailing into uncharted waters, it's good to sail with a fleet, and to cross-check each other’s navigation.

And finally (but critically), before making any announcements or plans, check your charter, bylaws, and date of formation.  Some libraries will have provisions in them relevant to this situation, and per sub-section 8 of Section 260 of the NY Education Law (controlling school district public library elections), a library chartered before April 30, 1971 may have a bit more leeway in these matters, as a matter of law.  Further, your library may have its own notice requirements or procedures, on top of the base-line legal requirements.

Now, as to the present circumstances, let’s parse the relevant content of Executive Order 202.12:

Circulation, filing, and collection of any designating petitions, or independent nominating petitions for any office that would otherwise be circulated or filed pursuant to the Election Law, Education Law or any other consolidated law for any office commencing March 31, 2020 are hereby postponed.

Any school board, library board, or village election scheduled to take place in April or May of 2020 is hereby postponed until at least June 1, 2020, and subject to further directive as to the timing, location or manner of voting for such elections.

As if this whole exercise isn’t going to be complicated enough, the first thing I need to note is that, under Education Law Section 260 (sub-section 7), school district public libraries have between April 1 to the end of June to hold their elections.  So just be aware: EO 202.13 did not delay all scheduled elections (only those set for “April or May).  So, for this answer, we’ll only address elections set for April or May.

Next, we need to check in not only with Education Law Section 260, but its companion Section 2018, which addresses the filing of petitions:

Each petition shall be filed in the office of the clerk of the district between the hours of nine a.m. and five p.m., not later than the thirtieth day preceding the school meeting or election at which the candidates nominated are to be elected. [emphasis added]

And of course, Education law Section 2004, which requires notice be given:

“…at least forty-five days before said meeting, in two newspapers if there shall be two, or in one newspaper if there shall be but one, having general circulation within such district. But if no newspaper shall then have general circulation therein, the said notice shall be posted in at least twenty of the most public places in said district forty-five days before the time of such meeting.”

So, with all that, what are the answers to the member’s questions?

First question: Do we have to do a legal notice that the vote is postponed and do new legal notices once we have a date?

My assessment is that the Executive Order is sufficient notice that the vote is postposed.  However, once the proceedings can be re-scheduled, a library will need to publish new notices. Further, it is important to note that the EO hints there will be “further directive as to the timing, location or manner of voting for such elections” coming from the Governor (or perhaps guidance from NYSED, upon direction of the Governor).

I imagine such “further directive” will take into account that typically, libraries must give at least 45 days’ notice.  But in any event, right now, school district public library elections are in a holding pattern, and the boards and leadership need to stay alert for further directions on next steps.

That said, a discussion with stakeholders, to ensure your library is ready to set its proceeding when the time comes, might be wise.  This could include a notice about the postponed proceedings, and direction as to where to look for next steps.

Here is a template:

Consistent with Executive Order 202.13, the [NAME] Library’s elections and budget vote are postponed, and the library is awaiting further direction from the state regarding rescheduling.  The Library will publish further notice and information to the public regarding the election as soon as we are able.  Questions about elections in [COUNTY] County can be directed to the [COUNTY] County Board of Elections at (###)###-####.

Second question: Can we reopen the opportunity for people to file a petition to run for the board?

This is fascinating.

The way I see it, 202.13’s “postponement” of elections means the thirty-day deadline for filing a designating petition will automatically be re-set to thirty days before whatever the new election will be.  This is because under Education Law Sections 260(8) and 2018, the deadline for filing is not a fixed date, but a deadline calculated based on the date of the election.  So, I think being ready to ask people to step up and get designated so you have sufficient nominees—especially if there were none duly submitted by the last deadline—is a good idea.

Of course, right now all collection and filing of designating petitions are also “postponed” (see the first excerpted paragraph of the Executive Order).   And the deadlines for petitions are going to be tough to hit before the July 1 statutory deadline. And at some point, there may be a decision that previous submissions will not be re-opened.

The next “directive” on this issue will have to tackle the issue of meeting the notification and petition filing deadlines, as well as the implications for those libraries that were in the notice period, and those that were not.

This is where conferring with the local Board of Elections officials, and the school district, even if they do not oversee your library’s elections, will be so critical.  They will have the insight and probably some inside information to share about how this will be configured.  And for those libraries with a lawyer, this is the time to involve them (before final decisions are made).

To put this in context, right now although critical, the election is probably only one of the numerous high priority issues your library board is considering. First and foremost is likely the on-going well-being of the library and its role in the anticipated recovery of your community.

With that in mind, I suggest any board facing this situation also review the guidance on using a crisis management for public libraries, and factor the monitoring and messaging around this issue into their response plan.

If and when we get an update or “further directives,” we’ll post any update to this answer.

[1] Has anyone ever done a poll to see how many librarians have been serenaded with the “Marion,” song?  And taken a further poll to see if it is now regarded as harassment?

I have a phrase I use in my office to remind my team (and me) to be diligent, but always play it cool: “Quick work is [not such very good[1]] work.”

To get ahead of the Covid-19 Pandemic, our government is acting QUICKLY.  The closings, the attention to a million health-related and logistical details—our leaders are having to handle an immense amount of work, in a very small amount of time.

When working quickly, one of the first things to go by the wayside is word-smithing. As can be seen from the member’s questions, that is what happened here.  The Order is helpful, but its phrasing probably could have been a bit more clear.[2]  UPDATE: Further, this March 13th Order may be confused for an earlier Order on March 7, which was the focus of a notice by the NY Committee on Open Government, that went out to many people, and has now been superseded by the Order referenced in the members question.[3]

So, unpacking the order (and explaining a few things it is clear the asking member already understands, but I am providing for helpful context), what does it mean for libraries?

Libraries are required by the New York Education Law (which creates them) to follow the Open Meetings Law (a/k/a “Article 7 of the Public Officers Law”).  This Order relaxes some of the laws requirements to suit our state’s pandemic response.

Typically, to comply with the Open Meetings Law, a library must: 1) provide notice of a meeting and announce the use of any teleconferencing in advance; 2) identify the location(s) for the meeting; and 3) state the public’s right to attend the meeting in person.   If the meeting will be live-streamed over the internet, the announcement must include the web address.  And finally, whenever possible, the library must post the notice of the meeting “conspicuously” on its website. [4]  (It has been firmly and repeatedly established that no voting can take place via teleconference, but videoconferencing is allowed).

The Open Meetings Law was passed because, as the New York Legislature puts it:

It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy. The people must be able to remain informed if they are to retain control over those who are their public servants. It is the only climate under which the commonweal[5] will prosper and enable the governmental process to operate for the benefit of those who created it.[6]

So what is different now?  We’re trying to maintain our democracy, but also keep it from getting sick.  With that goal in mind, lets parse the Order, and answer the member’s questions.

1. The Order says: “…without permitting in public in-person access to meetings…”

This means that for the duration of the Order, the public does not have to be able to physically attend your library’s board meetings.  Basically, it empowers your library to cut down the size of those physically assembling.  This is consistent with other recent Executive Orders regarding eliminating large gatherings.

2. The Order says: “…authorizing such meetings to be held remotely by conference call or similar service…”

This means that for the duration of the Order, contrary to the usual requirements, your board can meet view conference call (or “similar” service).

3.  The Order says: “…provided that the public has the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed.”

This means[7] that in order to take advantage of the relaxed requirements I set out in “1” and “2” above, the public has to be able to see OR hear the meetings, BUT ONLY if your library arranges for them to be recorded and (later!) transcribed.

These are significant adjustments to the requirements of the law.  But with regard to notice, which is at the heart of the member’s question, the Order has waived none of law’s requirements. 

With that in mind, to the greatest extent possible, sending notice to the media as usual, and posting notice of the meeting in a physical, non-virtual place viewable to the public is still required. While disclosing the exact location of all meeting participants may not be possible (since they will be on the phone), the notice should strive to include as much information as possible that is most useful to the public, including the location of any physical participants.  And the method you select for sharing the meeting in real time (livestreaming, a broadcast) should be accessible to the general public.

It might be also be helpful, when crafting your notice, to include acknowledgement that this meeting and notice will be a little bit different:

In keeping with Executive Order 202.1 (regarding emergency adjustments to the Open Meetings Law in response to the Covid-19 pandemic), the public is not permitted in-person access to this meeting, and the meeting shall be held remotely via [METHOD].  As required by the Governor’s Order, the public will have the ability to [VIEW OR LISTEN TO] such proceeding at [METHOD], and the meeting shall be recorded,  transcribed, and made available on the Library’s web site before [DATE].

Since current federal government guidance is that gatherings of more than ten people are not recommended at this time, it makes sense to not provide or allow access to a physical location in which to gather to listen to or view the meeting—at least for now.  But business must get done.

Good luck with your meetings; your board members have a lot to think about.

[1] I actually use shorter, monosyllabic word, but Ask the Lawyer is rated “G.”

[2] I am assuming that “legal aid in the Governor’s Office” is not a relaxing job right now (if it ever is).

[3] Thanks for the heads-up on the COOG’s 3/9/20 advisory memo, Grace Riario at Ramapo Catskills Library System (which, to emphasize, has been superseded by the 3/13/20 Executive Order).  With so much happening so fast, it is good to be able to add this layer of clarification.

[4] For a more thorough explanation, visit https://opengovernment.ny.gov/open-meetings-law

[5] Not a typo, but a cool old word for the general welfare.

[6] Public Officers Law, Article 7, §100.

[7] For anyone who wants to get together (virtually!) and discuss the significance of potentially missing commas in this part, please send comments to adams@losapllc.com.