MEMBER QUESTION

The library (school district public library without a union or a bargaining agreement and less than 50 employees) offers paid sick leave for most employees. However, based on what we have learn we have paid people, without it coming off of their earned sick time, if they are told to quarantine because they have been exposed to the virus. Does the same hold true for someone who is out sick because they have the virus? 
 
I have looked at the Ask a Lawyer FAQs, the various federal and state sites and issues of the HR Specialist Employment newsletter and do not see a clear answer.

WNYLRC ATTORNEY'S RESPONSE

MEMBER QUESTION

The library is seeking information about a law stating that the library board has sole authority over public library staff benefits. The issue that needs to be addressed is a town board's attempt to eliminate a part-time employee's one week of paid leave per year that the library board granted [several years ago]. The town board's position is that since the other part-time town employees do not receive this paid leave, the library staff should not either. Research into the issue included a review of Education Law 226, but that only addresses hiring, firing, and salaries. Benefits such as paid time off, holiday pay, sick leave are not covered.

WNYLRC ATTORNEY'S RESPONSE

I recently had a chance to check in with the New York State Comptroller's legal department[1] on this very topic.

The reason I had to check in is because the most recent on-point authority I could find on this subject was from 1981. 

The input I got from the legal department was re-assuring: no change in guidance in the almost four decades that followed.[2]

Now, that said, the attorney at the Comptroller's gave me the usual disclaimer that I often give in "Ask the Lawyer": It's just an opinion.  The law can change.  Check with your lawyer, since your charter, bylaws, and policies, or even a contract, could change how this applies to you."

But that said, below are the reassuring words of Comptroller Opinion #445, circa 1981.  Since they are a little heavy on the legalese and citation, I've put the important part in bold:

"As a general rule, the town library board of trustees, and not the town board, has the authority to appoint and dismiss library personnel (Education Law, §§ 226(7), 260; 30 Opns St Comp, 1974, p 98). The library board exercises direct control and supervision over library personnel and, for most purposes, including labor negotiations [**486] under the Taylor Law (Civil Service [*2] Law, §§ 200, et seq.), the library board is considered to be the employer of library personnel (County of Erie v. Board of Trustees, 62 Misc 2d 396, 308 NYS2d 515; Binghamton Public Library Unit v. City of Binghamton, 69 Misc 2d 1005, 331 NYS2d 515; Opns St Comp, 1972, No. 72-402, unreported; cf. Retirement and Social Security Law, § 30(c); Opns St Comp, 1980, No. 80-199, as yet unreported; Finkelstein v. Central School District, 34 AD2d 781, 311 NYS2d 243 affd 28 NY2d 705, 320 NYS2d 751). Compensation for library personnel is fixed by the library board and paid from the library fund (Education Law, §§ 226(7), 259(1)). It would then follow that, as between the town board and the library board, it is the library board which determines the vacation and sick leave benefits for library employees. It is our opinion that a library board of trustees has implied authority to provide for sick leaves and vacations for library employees (see Opn No. 80- 199, supra; 1961 Atty Gen [Inf Opns] 105; Education Law, §§ 226(7), 260). We note that expenditures for employer contributions to the New York State Employees' Retirement System for library employees are expenses [*3] incurred for the operation of the library and should be paid from library funds (Opns St Comp, 1975, No. 75-903, unreported; 16 Ed Dep't Rep, 1977, p 416). The same would hold true for employer contributions for social security and unemployment insurance for library employees." [emphasis added].

So, with regard to the member's specific situation, I of course have to say: " It's just an opinion.  The law can change.  Check with your lawyer, since your charter, bylaws, and policies, or even a contract, could change how this applies to you."  But if all of those things have been checked, and there is no provision changing the default, the Comptroller's words from 1981 still apply.

I hope this will help as your library works to retain that one week of paid leave!

Thanks for a great question.

 

Supplementary Answer

NOTE: For libraries that are running into this type of issue with their sponsoring municipalities, below, please find "some additional input" that I hope can be of help:

As many of you know, my law office has the privilege of working with libraries across New York.  It is work my team and I value highly, because it connects us with a vast "information army" of committed, creative librarians who are dedicated to public service.

This work also gives us an array of windows into what is happening "out there," especially when it comes to public libraries working with their districts and municipalities on issues like the one shown in this question.  And while each specific view from any particular window is confidential, it positions my team to distill a lot of anecdotal information,[3] and to share what we see in the aggregate.

Based on what we are seeing "in the aggregate" the type of issue brought forward by the member has always been an "issue," but with the budget pressures and political theater ushered in by the events of 2020, it appears positioned to become an "Issue" into 2021 and beyond. 

The emergence of this Issue isn't just a by-product of budget woes heightened by pandemic.  It is also the result of a rapidly evolving regime of employment law in New York, making the distinction between government and "private" employers more critical, with every passing day.  This distinction impacts things such as: comp time, overtime, minimum wage, insurance, liability, civil rights claims, labor law claims, and things that may seem mundane, but are actually quite important (such as: "Whose HR manual do we follow?").

If you take a quick scan of the "Ask the Lawyer" searchable index,[4] you'll see that numerous member questions arise from this "Public Library as Employer" divide. And while they relate to different aspects of the library-as-employer, they all touch on one very specific priority: public library board authority.  And it's apparent that this is something some sponsoring municipalities and districts have a challenge grasping.

So, in an effort to provide a short, succinct resource for libraries to direct their government entities to when they try to interfere with hiring, try to control employee benefits, or otherwise try to interrupt the autonomy of duly elected/appointed trustees in the governance of a chartered public library, I am posting this memo on my firm's website at https://www.stephaniecoleadams.com/adamsblog/2021/1/7/comments-on-public-library-board-autonomy, without the usual snarky asides and footnote commentary. 

Hopefully it can help avoid some of the needless argument and hostility that these misunderstandings can create.  If you find it helpful, please let us[5] know.

--Cole

 

Comments on Library Board Autonomy

Law and current legal authority firmly establish that public library boards are the sole authority regarding employee terms of employment, including hiring, compensation, benefits, evaluation, promotion, discipline, and termination. 

This autonomy is constrained only by a public library board's need to observe the New York Civil Service Law, the New York Education Law, numerous state and federal labor laws, various applicable regulations, and a library's own charter and bylaws. 

The law does allow a public library to use, in whole or in part, the payroll system, policies, and benefits systems of their sponsoring government entity, if such resources are offered to the library by that entity.  Further, the government entity, in making such an offer, may condition such use on the library's cooperation with certain reporting procedures or methods of documentation.  The choice to use such offered resources, however, is ultimately at the discretion of the library's board, who may instead decide to have the library implement its own system. 

And finally, the choice as to how to expend library funds with respect to employees (salary, benefits, paid time off) always rests solely with a public library's board.

The legal authority establishing these considerations is extensive, but a thorough summary is set forth in the links and content below.

https://www.osc.state.ny.us/legal-opinions/opinion-93-15, which states:

"The ultimate control of the use, disposition and expenditure of the library fund moneys is vested in the library board even when the municipal treasurer has custody (1991 Opns St Comp No. 91-57, p 158). Further, even if the treasurer of the sponsoring municipality is custodian of the library fund, the library board would have custody of private source moneys of the library (1988 Opns St Comp No. 88-76, p 145; 1980 Opns St Comp No. 80-340, p 101).

Public libraries are, for most purposes, fiscally autonomous from the sponsoring municipality (see Opn No. 91-57, supra; 1983 Opns St Comp No. 83-32, p 37; Buffalo Library v Erie County, 171 AD2d 369, 577 NYS2d 993 affd 80 NY2d 938, 591 NYS2d 131). In addition, public library officers and employees are often not considered to be officers and employees of the sponsoring municipality or school district (see, e.g., General Municipal Law, §800[5], conflicts of interest; Public Officers Law, §10, official oaths; Binghamton Public Library v City of Binghamton, 69 Misc 2d 1005, 331 NYS2d 515 and County of Erie v Board of Trustees, 62 Misc 2d 396, 308 NYS2d 515, collective bargaining negotiations). In view of the library's fiscal autonomy, it is our opinion that library trustees and the separate library treasurer are not town officers or employees for purposes of Town Law, §123 and, therefore, are not subject to the accounting and auditing provisions of that section.

We note, however, that General Municipal Law, §30(3) requires that an annual report of financial transactions, including those involving private source moneys (Opn No. 88-76, supra), be made by the treasurer of each public library. The report must be certified by the officer making the same and, unless an extension of time is granted, must be filed with the Office of the State Comptroller within 60 days after the close of the library's fiscal year (General Municipal Law, §30[5]). In addition, the Education Law contains certain requirements for public libraries to report to the State Education Department (see Education Law, §§215, 263). Finally, as noted in Opn No. 88-76, supra, the town board, in determining the amount to be raised by taxes for library purposes, may take into account a library's private source funds and, therefore, may request from the library information concerning such funds."

https://www.osc.state.ny.us/legal-opinions/opinion-91-57, which states:

"With respect to library moneys, however, we note that public libraries are, for most purposes, fiscally autonomous from the sponsoring municipality (see, e.g., 1983 Opns St Comp No. 83-32, p 38). Thus, the ultimate control of the use, disposition, and expenditure of those moneys is vested in the library board of trustees even if the municipal treasurer is the custodian of library moneys. (Education Law, §§226[6], 259[1]; 1987 Opns St Comp No. 87-84, p 125; see also Opn No. 87-49, supra; Opn No. 86-54, supra). In addition, it is the library board of trustees which may authorize the investment of library moneys even when the moneys are held in the custody of the municipal treasurer (Opn No. 86-54, supra). Therefore, since the library board controls the use and disposition of library fund moneys, it is our opinion that the library board must consent to any arrangement under which library fund moneys are to be comingled with moneys of the municipality."

https://www.osc.state.ny.us/legal-opinions/opinion-2001-12, regarding indemnification of library trustees, which states:

"PUBLIC OFFICERS LAW §18: There are two alternatives for conferring the benefits of section 18 of the Public Officers Law on employees of a public library: either (1) the board of trustees of the library may elect to confer the benefits of section 18 on library employees as a public library expense; or (2) the governing board of the sponsoring municipality or school district may confer section 18 benefits on library employees as a direct expense of the sponsor."

Comptroller Opinion #445, which states:

"As a general rule, the town library board of trustees, and not the town board, has the authority to appoint and dismiss library personnel (Education Law, §§ 226(7), 260; 30 Opns St Comp, 1974, p 98). The library board exercises direct control and supervision over library personnel and, for most purposes, including labor negotiations [**486] under the Taylor Law (Civil Service [*2] Law, §§ 200, et seq.), the library board is considered to be the employer of library personnel (County of Erie v. Board of Trustees, 62 Misc 2d 396, 308 NYS2d 515; Binghamton Public Library Unit v. City of Binghamton, 69 Misc 2d 1005, 331 NYS2d 515; Opns St Comp, 1972, No. 72-402, unreported; cf. Retirement and Social Security Law, § 30(c); Opns St Comp, 1980, No. 80-199, as yet unreported; Finkelstein v. Central School District, 34 AD2d 781, 311 NYS2d 243 affd 28 NY2d 705, 320 NYS2d 751). Compensation for library personnel is fixed by the library board and paid from the library fund (Education Law, §§ 226(7), 259(1)). It would then follow that, as between the town board and the library board, it is the library board which determines the vacation and sick leave benefits for library employees. It is our opinion that a library board of trustees has implied authority to provide for sick leaves and vacations for library employees (see Opn No. 80- 199, supra; 1961 Atty Gen [Inf Opns] 105; Education Law, §§ 226(7), 260). We note that expenditures for employer contributions to the New York State Employees' Retirement System for library employees are expenses [*3] incurred for the operation of the library and should be paid from library funds (Opns St Comp, 1975, No. 75-903, unreported; 16 Ed Dep't Rep, 1977, p 416). The same would hold true for employer contributions for social security and unemployment insurance for library employees."

 

I hope this information is of assistance.

MEMBER QUESTION

The state's new paid sick leave law recently went into effect on September 30th. According to the state's website, eligibility requirements are as follows:

"All private-sector employees in New York State are covered, regardless of industry, occupation, part-time status, and overtime exempt status. Federal, state, and local government employees are NOT covered, but employees of charter schools, private schools, and not-for-profit corporations are covered."

As a school district public library, I'm curious to know if we fall into this local government category and so are not covered by the law.  According to the state comptroller's table summary of local government entities [https://www.osc.state.ny.us/local-government/data/local-government-entities], public libraries are listed as "Miscellaneous Local Public Organizations".

However, in regards to page 33 of the State's Local Government handbook,

"Local government in New York State comprises counties, cities, towns and villages, which are corporate entities known as municipal corporations. These units of local government provide most local government services. Special purpose governmental units also furnish some basic services, such as sewer and water services. School districts, although defined as municipal corporations, are single-purpose units concerned basically with education in the primary and secondary grades. Fire districts, also considered local governments in New York State, are single-purpose units that provide fire protection in areas of towns. Fire districts are classified as district corporations. There are other governmental entities which have attributes of local governments but which are not local governments. These miscellaneous units or entities are generally special-purpose or administrative units normally providing a single service for a specific geographic area."

I wonder if a school district public library, such as ourselves, doesn't fall under this last category of governmental entity: one which has attributes of local governments but which is not a local government. If this is so, then this new law would seem to apply to us as well.

It's all a little confusing. Maybe you can help!

WNYLRC ATTORNEY'S RESPONSE

I wish I could reply to this excellent question with a plain "yes" or "no." But I cannot.

Why not?  Because, while as the member points out, a public library's "type" is relevant to this question, what may also be relevant is how the employees are being paid.  So answering this question requires a two-factor analysis:

Factor 1: Is the library in question considered a "type" of "governmental agency^[1]?"

AND/OR

Factor 2: are the employees of that library compensated as if they were employees of a governmental agency?

If the answer to either question is "yes," Labor Law 196-b (which is the new "sick leave" law) doesn't apply.  If the answer to both is "no," then it may be time for the non-exempt library to draft a new Sick Leave Policy.

 

Now let's talk about the factors in this "two-factor test."

Factor 1: Is the library in question considered a "type" of "governmental agency?

Most libraries in the state of New York are NOT "governmental agencies" as that term is used in Labor Law Article 6 ^[2].

Sure, the library has to account for taxpayer money as required by the "General Municipal Law."  And yes, it is subject to parts of the "Public Officers Law."  And yep—it may even have to disclose certain records under the Freedom of Information Law. 

But none of that means they are performing a function of a "governmental agency" as defined under the Labor Law, which is where the new "sick leave" rules come from.  Under the Labor Law, a public library is far more likely to be considered a not-for-profit education corporation required to offer sick leave (and provide Workers' Compensation Insurance, and follow the NY Minimum wage laws...), than an exempt entity like a school district.

Now that being said, even if a library is not a "governmental agency," they may also be exempt from 196-b if their employees are....

 

Factor 2: "Compensated as if they were employees of a governmental agency"

How can this type of "compensation" happen, if the library itself isn't a "governmental agency?"

In New York, many libraries use their sponsoring municipalities and sponsoring school districts[3] as the "employer" of their employees—even though the library board retains the legal autonomy to hire, discipline, set compensation, promote, or terminate the employees. 

In this type of scenario, the library employees are a) paid directly by the municipality[4], b) are covered by the municipality's insurance[5],  c) get the municipality's benefits, and (most tellingly) are d) eligible for "comp time"^[6] otherwise barred by rules requiring mandatory overtime.  In short, under much of the Labor Law,[7] they are treated as municipal/district employees.^[8]

 

So does my public library have to give employees sick leave under the new law, or what?

Sadly, there is no "bright-line" rule.  But!  I have created a handy "Library-Municipality Relationship Type" chart to help you figure it out if it's something your library needs to worry about:

Library-municipality Relationship Type	Hallmarks	Legal impact with regard to employees and labor law	What this means with regard to the new "Sick Leave" law ("196-b").
1. "Total Coupling" Type	The library never separated any functions from the sponsoring entity; all finances, employee compensation, employee benefits, procurements, and property are owned/controlled by the municipal entity.   Ideally, the relationship is confirmed in writing.	In "total coupling," employees of the library, for Labor Law 196-b purposes, are considered municipal/district employees, even though the library board retains the authority to hire, discipline, set compensation, promote, or terminate the employees.	Employees are totally covered by the policies and benefits of the municipality/district, including the sick leave policy, and 196-b does not apply.
2. "Select support: determinative" Type	The library has separated some functions from the sponsoring entity, but some functions determinative of legal status remain controlled by the municipal entity; for example, if a town still owns the library's building, or payroll and benefits are through a city.   Ideally, the relationship is confirmed in writing.	In a "Select support: determinative" scenario, if "employment" is a determinative factor, employees of the library  are paid by the municipality/district, so for legal purposes the employees might be considered municipal employees, even though the board retains the authority to hire, discipline, set compensation, promote, collectively bargain with, or terminate the employees, and even though the library has de-coupled from the entity in other ways.	IF employees are totally paid by and covered by the benefits of the municipality/district, including their sick leave policy, 196-b does not apply.  Otherwise, the library must develop a policy under Labor Law 196-b, OR consider itself a separate "governmental agency" to be exempt.
3. "Select support: non-determinative" Type	The library has separated from the sponsoring entity to the degree that any slight collaboration between the library and the municipality does not determine legal status.  For example, the Town may plow the parking lot as a courtesy, but does not own the building, hold the money, or provide payroll/benefits.   Ideally, the relationship is confirmed in writing.	In a "Select support: non-determinative" scenario, the select support related to employees would not risk creating employer-employee status, or influence compensation and benefits, but could still be helpful assistance.  For example: if library employees were allowed to attend town employee trainings and professional development to save money for the library.	Library employees are not paid through the town/district, so the library must develop a policy under Labor Law 196-b, OR consider itself a separate "governmental agency" exempt from the law (which should be confirmed by a lawyer in writing for that specific library).
4. "Totally De-coupled" Type	The library has completely separated functions from any sponsoring entity.  The library owns the building, does all its own procurement and contracting, is the sole administrator of employee-related matters, and takes no extras or freebies from its municipalities/district.   No need to confirm the lack of relationship in writing, but you can exchange New Year's cards.	In a "total de-coupling," there is no select support related to employees. Librarians and municipal/district employees might say "hi," but they don't attend regular trainings or joint work sessions, and they are not in any way co-workers.	Library employees are not paid through the town/district, so the library must develop a policy under Labor Law 196-b[9], OR consider itself a separate "governmental agency" exempt from the law (which should be confirmed by a lawyer in writing for that specific library).

 

And there you have it.  From what I have seen, every public library in New York State handles its coupling/de-coupling in a different way.  Charter documents, bylaws, MOU's, and political/diplomatic relations can influence this just as much (if not more than) that law.  If you know where your library stands, you can not only assess its obligations under the Labor Law, but many other critical compliance obligations, as well.^[10]

The bottom line here is: library employees shouldn't be left in a lurch, especially when it comes to sick leave, family medical leave, short-term disability, workers' compensation, and paid family medical leave—all of which are rooted in the question of "who" their employer is.  This means library trustees should periodically confirm, with certainty and clarity, what policies apply to their workforce.[11]  Regardless of where a library falls on the above chart, this can be accomplished with a confirmed, clear set of policies.

As employment law gets more and more intricate, and as we continue to live with a pandemic, this need for clarity will only get more critical.

I want to say a big "THANK YOU" to  Ben Gocker at Tupper Lake Public Library for submitting this excellent question and bearing with me while I talked through the answer with him.^[12] Like all librarians I get to work with on "Ask the Lawyer," Ben is a critical thinker who brought a lot of research and practical experience to his question.  He also exhibited incredible patience as I tried to explain the mutable legal status of bodies defined by the Education Law, operating under the Not-for-Profit Corporation Law, subject to the General Municipal Law, living with the Civil Service law, and of debatable status under the Labor Law.  Thanks again, Ben!

I hope this approach and chart come in handy for public libraries out there struggling with this question.