School Districts

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.

I am sure there is a very interesting set of facts, personal convictions, and conversations behind the stark facts presented in this question (there always is).  But we’ll address just the stark facts.

Because a library’s Code of Ethics, Conflict of Interest Policy, and Whistleblower Policy[1] are rooted in different areas of the law, a refusal to sign these documents creates an array of ramifications. We’ll explore each type in turn.

But first, it’s important to establish certain base factors.

Base Factors

In New York, most libraries (unless they are part of a larger institutions like a college or museum) are not-for-profit corporations chartered by the New York Education Department’s Board of Regents.[2]  This means that, just like other not-for-profit corporations registered with the New York Department of State, libraries are subject to the Not-for-Profit Corporations Law (the “NFPCL”).[3]  This includes school district public libraries.

Without getting too technical, this means that all libraries in New York are governed in accordance with not only their charters and bylaws, but the applicable parts of the Education Law and the NFPCL, too.[4]

This governance structure impacts questions related to conflicts of interest, whistleblowing, and codes of ethics. With the basic features established, let’s look at the different type of policy in the member question.

Conflict of Interest Policy

Here is what the law says about a refusal to participate in the “Conflict of Interest” policy, as governed by the NFPCL:

The conflict of interest policy shall require that prior to the initial election of any director[5], and annually thereafter, such director shall complete, sign and submit to the secretary of the corporation or a designated compliance officer a written statement identifying, to the best of the director’s knowledge, any entity of which such director is an officer, director, trustee, member, owner (either as a sole proprietor or a partner), or employee and with which the corporation has a relationship, and any transaction in which the corporation is a participant and in which the director might have a conflicting interest.[6]

So, to give a stark answer to the member’s question, per the law, no person should actually be elected to serve as a trustee until the nominee’s Conflict of Interest statement (the “COI”) is completed and submitted.  In other words, if the COI is not turned in, that person should never initially be elected as a trustee (we’ll pick that back up in a few paragraphs when we discuss the election criteria for school district public library trustees).

Whistleblower Policy

A requirement to “sign” the Whistleblower Policy is a slightly different matter.  Unlike the law related to conflicts of interest, the law requiring any not-for-profit with over 20 employees (or revenue in excess of one million dollars) to have a Whistleblower Policy[7] does not come with a requirement for trustees to sign any document. 

Of course, a refusal to abide by the Whistleblower Policy (for instance, a trustee failing to keep a report confidential), could result in a violation of the law, and the libraries’ bylaws, as well.

Code of Ethics

Public school boards must have Codes of Ethics,[8] but libraries—even school district public libraries—do not. There is no requirement in the NFPCL, nor the Education Law, nor any applicable regulations, that a public library have such a code.

That said, to clearly express and enforce a library’s values, a Code of Ethics is often built into a library’s bylaws or adopted as a stand-alone policy of a library’s board.[9]   The bylaws, or policy itself, could also require that it be signed.  Once it is a requirement of the bylaws or policy, it does not have the force of law, but it can be enforced by the board.

Refusal to Sign

Which brings us to: whether it a requirement of law or policy, the refusal to sign of a board member must be addressed under the library’s charter, bylaws, and the NFPCPL. 

Under NFPCL §706, a board is empowered to remove a board member per the procedures in its bylaws.  Therefore, if a board determines that failure to sign the Code of Ethics or Whistleblower Policy is unacceptable, or that a failure to sign a Code of Ethics makes the library non-compliant with the law, then that board member can be removed, provided the remaining trustees are careful to follow the bylaw’s procedures for doing so. 

This can be a divisive issue, since I imagine someone could present a debatable reason for not signing a Code or other policy,[10] but since a Code of Ethics or mission statement is something every board member must support as part of their service to the library, the root cause of the refusal might be just as serious as the refusal, and in any event, must be resolved. And that is, except for one wrinkle, the lay of the land.

School District Public Library

At school district public libraries, board members are elected per the requirements of Education Law §260. 

§260, and by reference, §2018 of the Education Law, include very precise conditions for the nomination and election of a school district public library board member—none of which is a pre-vote signature on a COI, or a signed acceptance of a Whistleblower Policy or Code of Ethics.

Of course, per Public Officers Law §10, all school district public library trustees must take and file an oath of office “before he[11] shall be entitled to enter upon the discharge of any of his official duties.” This means, somewhere in the “pre-term” area after the election but before the newly elected trustee starts working, there is a zone where they can, based on a refusal to take the oath of office, not be qualified to start the term.[12]

The consequences of a refusal to sign a COI are a little less well-defined, but it is clear that if a board tolerates a refusal, the organization is not in compliance with the NFPCL.  The refusal to sign a Whistleblower Policy is not controlled by law, but the failure to actually follow it is.  And the failure of a board member to sign a Code of Ethics is a matter to be decided by the rest of the governing board.

What Happens Next?

The refusal to sign and participate in critical board policy cannot simply be ignored.  It has to be addressed, and the rest of the board has to follow the rules as they address it.

Barring any obvious provision in the bylaws or wording in a particular policy, what does the board use as a playbook for dealing with this type of challenge?  Upon confirming the factors leading to the refusal, a board’s executive committee,[13] consulting with the library’s lawyer and working from copies of the charter and bylaws, must consider the facts, could develop a solution.  The solution could be a revision of a policy to address a particular concern, or, in the case of an incomplete COI, removal of the member.  In no event should this be done without the input of an attorney, since the stakes are high, and feelings may be strong.

Thank you for an important question.