RAQs: Recently Asked Questions

Topic: Protecting Against Misconduct - 10/14/2020
In light of recent accusations of alleged misconduct by community organization volunteers utilizin...
Posted: Wednesday, October 14, 2020 Permalink

MEMBER QUESTION

In light of recent accusations of alleged misconduct by community organization volunteers utilizing public library facilities, how should libraries protect themselves moving forward?

Many of our libraries have community rooms that are reserved at no cost, or minimal cost, for service organizations, community groups, or private events. Typically these events are not monitored by library staff, and often occur outside of normal library operating hours. Although community room use by the public may be limited based on scheduling and other parameters, discrimination based on the type of program/service is generally prohibited.

What best practice measures should libraries implement to reduce liability? Is there particular language that we should include in our community room rental agreements or policies?

On a related note, what about other library visitors that make use of library common space on a regular basis for tutoring or counseling that doesn't constitute a library sponsored program or group? Library staff cannot always monitor what occurs out of view of staff workstations, and cameras don't typically capture every secluded space within the building.

Finally, what about staff who often work alone in the library, or alone in the children’s' room? Even with policies regarding unattended children under a particular age, those age limits are often well below adulthood and library staff are in a one-on-one situation for extended periods of time.

This concern is primarily related to accusations of sexual misconduct and abuse of minors, but could apply to anyone, at any time, for any reason.

WNYLRC ATTORNEY'S RESPONSE

In 2012, I was an in-house attorney at a university when the "Penn State Scandal"[1] broke.  Along with the nation, I was horrified to learn about the serial sexual abuse of children by a powerful coach in an NCAA Division I football program--and just as critically, the system that allowed the abuse to go unchecked for so long.

If I hadn't been before, at that point I became acutely aware of the responsibility of an institution to safeguard the vulnerable populations it serves—even when only hosting or renting a part of its facility.[2]  I looked to the law and other guidance for solutions, and spent time working on contracts, policies, and trainings for safeguarding minors--and avoid liability for failing to do so.

As the member's questions point out, in a busy, community-oriented library, that liability can enter the scene in many ways.  Let's tackle their questions one-by-one.

Member question: Many of our libraries have community rooms that are reserved at no cost, or minimal cost, for service organizations, community groups, or private events. What best practice measures should libraries implement to reduce liability? Is there particular language that we should include in our community room rental agreements or policies?
I have spent a lot of time over the last four years[3] reviewing various library policies.  And if there is one thing I have learned, it's that almost every library governs the use of its space by outside organizations differently. 

This makes a uniform approach to this question difficult, but I think I can give you some good initial food for thought by providing two answers:

ANSWER #1: adopt a “Protection of Minors” addendum to written policies and (ahem[4]) "handshake procedures" for allowing use of your facilities for one-time (or very rare) use by outside groups.

Thank you for using the ABC Library for your gathering! 

At the ABC Library, our mission is based on service to the community, and that includes a commitment to practices that keep our community safe.

Therefore, a representative of your organization must fill out this "Assurance Regarding Minors" before granting you permission to use the space.

1.  Will your event include minors (children under the age of 18)?  YES     NO

If "NO", we're all set, please sign and date below.

If "YES", please continue

2.  Will your event require the guardian or parent of any minors attending to be present?

YES     NO

If "YES", we're all set, please sign and date below.

If "NO", please continue

3.  If minors unaccompanied by a parent or guardian will be at your event, please list the adults responsible for the well-being of the minors, and how your organization has confirmed they do not pose a risk to the minors.

Name

Role in your organization

Method of risk assessment

 

 

 

 

 

 

 

 

 

 

 

 

 

Thank you for filling out this assurance.

DATE: ________________

 

SIGNATURE: _______________________

PRINT NAME: ________________________

ADDRESS: ____________________________

 

WITNESS: _______________________

PRINT NAME: ________________________

ADDRESS: ____________________________

 

ANSWER #2: Add a "Protection of Minors" provision to the standard contract your library uses  to set the terms of regular/routine use of your facilities by outside groups.

[NOTE: A "Facility Use Agreement" should name the organization in the contract,[5] set out the rules for use, confirm if the use is paid, bar use for political purposes,[6] and—critically—if there is a heightened risk to the activity,[7] require insurance.  What I have set out below is just the provision related to minors.  A template facility use agreement is on "Ask the Lawyer" at https://www.wnylrc.org/ask-the-lawyer/raqs/167.]

Protection of Minors

The ABC Library expressly forbids abuse or sexual abuse of minors on its premises. 

As a condition of using space in the Library, ORGANIZATION represents and warrants:

a.  ORGANIZATION has verified, and shall verify every six months, that all employees and volunteers who will be at the Library per this Facility Use Agreement are not listed on the New York State Sex Offender Registry.

b.  ORGANIZATION maintains a policy barring sexual abuse within its operations, and requires all employees and volunteers to report instances of sexual abuse to law enforcement within 24 hours of observation or receiving a report of sexual abuse; a copy of the policy is attached.

c.  The indemnification and insurance provisions in this agreement expressly include indemnification and coverage of the Library, its trustees, officers, employees, volunteers and agents for any complaint, claim, or cause of action related to alleged sexual abuse.

 

Next member question: On a related note, what about other library visitors that make use of library common space on a regular basis for tutoring or counseling that doesn't constitute a library sponsored program or group?

This is a very tough one, because the risk will vary based on the design and capacity of your library.

Libraries with space in wide-open areas near circulation and reference desks obviously have an advantage in this regard: there is lots of space for people to meet as described in the question, without the seclusion that can provide protective cover for illegal behavior. 

That said, libraries also provide secluded areas so people have places for quiet contemplation.  Quiet contemplation being one of the things we need more of in this world, I imagine most libraries are not considering totally getting rid of it any time soon.

There is no perfect solution to this issue, but here is the best input I can offer: once every few years (at least), a library should review its floorplan, policies, and any and all safety-related concerns with the library's insurance carrier.  They will be in a position to help the library assess its unique position in this regard.

 

Finally, what about staff who often work alone in the library, or alone in the children's room? Even with policies regarding unattended children under a particular age, those age limits are often well below adulthood and library staff are in a one-on-one situation for extended periods of time.
At least once a year, staff—especially staff who work alone or in isolated areas—should be trained on practices to keep themselves and others safe.  This should include:

  • Security protocols
  • Emergency response plan
  • Recognizing warning signs and preventing violence in the workplace
  • Appropriate boundaries in the workplace
  • Addressing and responding to medical emergencies (including mental health emergencies)
  • Enforcing the Code of Conduct
  • Generating documentation of incidents

For some libraries, this training will draw on a large collection of formal policies.  For others, it will simply be running through a series of standard operating procedures.

The goal of such training--and the answer to the member's question--is to develop and enforce good boundaries (set by written policy or a well-articulated "standard operating procedure"[8] or "SOP") that includes a clear set of rules[9] for how to interact with minors, and every person and co-worker in the library.  By developing such rules/procedures while focusing on the entire spectrum of how a library keeps its employees and patrons safe, the energy spent on training and thinking about safety-related best practices will be maximized.

  • Requiring groups routinely using library space to give critical assurances and supply insurance;[10]
  • Requiring less routine users to at least give written assurance as to how they ensure safety;[11]
  • Training employees regularly to be aware of and ready to enforce policies related to safety;

...positions a library to both diminish the risk of child abuse at its premises, and to have the documentation to show the library did the best it could to diminish that risk.  This reduces both the likelihood of harm, and liability.

And as always when it comes to managing risk and liability, as often as is practical, invite your attorney and your insurance carrier to participate in these efforts--they are critical partners in such initiatives. 

Thank you for a very important set of questions.



[1] I am sure you can Google it, but here is a link to a thorough summary: https://www.chronicle.com/package/penn-state-scandal/

[2] I am also a parent. However, you'll only get the cool, rational lawyer part of my brain for this answer, since the "parent" part of my brain does not think about this issue either coolly or rationally. 

[3] That's right, "Ask the Lawyer" has been around for almost four years! 

[4] Since COVID has killed the handshake, we'll just call these "unwritten policies."

[5] In the sample language, I am calling the organization using the library's room "ORGANIZATION."

[6] For more on this political issue, see https://www.wnylrc.org/ask-the-lawyer/raqs/95.

[7] Like learning how to make stained glass (which can lead to nasty palm cuts), and leading a group of minors (which requires consideration of how an organization guards against abuse).

[8] Like, for instance, not having physical contact with patrons (no matter what their age).  Of course, such a protocol is a lot easier to enforce in COVID-times.

[9] If I ran your library, those rules would be: no physical contact with patrons (regardless of age), no unaccompanied minors under 16 allowed if the library only has one employee on staff, no leaving the circulation desk when patrons are in the library if there is only one employee on hand, no being in a room alone with an unaccompanied minor.  It would also be a rule that these rules are consistently applied.

[10] Answer #2.

[11] Answer #1.

Tags: COVID-19, Meeting Room Policy, Template, Behavioral misconduct

The WNYLRC's "Ask the Lawyer" service is available to members of the Western New York Library Resources Council. It is not legal representation of individual members.