Contracts

The answer to this question shows the power of libraries working together.

Over the winter of ‘24 – ‘25, WNLYRC gathered a group of librarians from academic and research institutions to talk about pricing transparency and other priorities for database subscriptions. I was invited to the meeting to discuss possible legal solutions.

The result is the first edition of “A Research Librarian’s Guide to Negotiating E-Resource Contracts in New York State,” posted on the Ask the Lawyer Resources page.

The Guide includes contract assessment guidance, RFP language, a model contract addendum, and guidance for working with in-house legal counsel and purchasing specialists.

Informed by the real-world experience of academic libraries, the goals of this new resource are to: 

• Help libraries avoid the negative impacts of non-disclosure agreements (“NDAs”);
• Limit redundant purchasing;
• Assure the ability of making adaptive copies under the Americans with Disabilities Act of 1990 (the “ADA”);
• Protect rights created by Copyright Act Sections 107, 108, and 110;
• Protect library user privacy;
• Emphasize data security; and
• Respect the intellectual property of content creators.

The resource may be used together with ESLN’s upcoming template for evaluating purchase and use of AI products and services.

The Guide may be found here. Just as important, your experience using the Guide, and suggestions for improvement, can be sent through the form here. The Guide is a collaboratively developed resource, and with your help, the next version will draw from even more real-world experiences.

If you use it, please provide feedback to make it better.

The New York State Education Department’s Office of the Professions, which oversees the licensure of social workers, describes social work this way:[1]

Social work is a profession that helps individuals, families, and groups change behaviors, emotions, attitudes, relationships, and social conditions to restore and enhance their capacity to meet their personal and social needs.

Social workers are trained to provide a variety of services, ranging from psychotherapy to the administration of health and welfare programs. They work with human development and behavior, including the social, economic, and cultural systems in which people function.

Sounds like a person who would be handy to have in not only a library, but perhaps in line at the grocery store, in a public park, and sitting next to you at a football game, right?

So, what would it look like (from the legal perspective) for a social worker to be embedded to work in a library?

Broadly speaking, there are three ways a social worker could offer services within a library or other not-for-profit/educational setting. Each way has its own legal and practical considerations.

The first way is for the library to employ the social worker. This would require the library to implement specific policies, resources, and insurance coverage (in other words, careful planning a budgeting), but it is doable.

The second way is for the library to contract with a social worker or agency to offer their services at the library. This would require less policy development and insurance coverage but would also require careful budgeting and a very thorough contract.

The third way would be for the library to cooperate with local departments of health and county social services to explore having professionals from the government agency on site.  In many ways, this would look like the “contract” option, but the agreement would likely be able to be far less formal.

For a variety of reasons, option #3 may often be the easiest, since there is already a lot of infrastructure in place for a county agency to support its local library or library system (the “insurance” part of things will be much simpler). That said, #2 is also fairly simple, so long as the social worker/agency can provide the required insurance coverage, and the library and provider can agree on a contract.

And option #1—the employment option—is not impossible. It just brings the biggest up-front challenges: develop a job description, policies, procedures, and insurance to support the position and all of its record-keeping and other ethical/professional obligations, and to ensure there is a firewall between the social worker’s records and other library records.

For a library that wants to explore this, it would be good to conduct a brainstorming session about what specific benefits the library would want to get from it and how they relate to the library’s plan of service.

For example: is the primary purpose so frontline staff can immediately refer patrons who may be in distress to a nearby resource for immediate assistance? Or is it so the social worker can offer community workshops and collaborate with staff on healthy programming? Once the primary goals and add-ons are determined, a job description/business plan (for option #1) or request for proposals (for option #2) could be developed to explore making it happen; the documents would address the legal/regulatory/risk factors (like ethics and how client records are kept, since they wouldn’t be “library records”).

The good news is that in 2024 there are actual, living models out there for these approaches!  While we didn’t delve too deeply, here are some links to New York libraries with social workers on site or in affiliation:

Baldwin Public Library

Brooklyn Public Library

Emma S. Clark Memorial Library

Farmingdale Public Library

Lindenhurst Memorial Library

Middle Country Public Library

New York Public Library

Thank you for a great question!

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

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

Answer: YES.

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

YES.

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

Well…

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

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

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

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

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

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

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

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

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

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

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

1. Who owns the library building and grounds?

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

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

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

2. Who insures the library building and grounds?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A) As owner of the building; or

B) With confirmed permission of the actual owner.

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

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

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

And that's it.

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

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

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

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

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

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

Happy building!