The New York Archives Conference recently posted a formal Code of Conduct (https://www.nyarchivists.org/nyac/code). While discussing our procedures for implementing this code, we began to wonder about the legal implications for enforcement. Are there any considerations for the standards we use in evaluating a complaint? What should we use for the burden of proof? To what extent are we empowered to investigate claims? What happens if someone challenges any resulting board action? Can we be sued for taking action and besmirching someone’s professional reputation? To summarize, we're wondering what legal ground we can stand on while enforcing our code of conduct.
It would be great to have a response before our conference on June 11. Thank you
Before I dive into this meaty and spectacular[1] question, here is a necessary disclaimer: this answer does not apply to chartered libraries.
Who does it apply to? The following:
Specifically excluded from this answer are municipal, school district, and special district libraries, because their rules of conduct must accord with state and federal requirements of due process. Indian[2] and association libraries must also be cautious about this issue, since the law and practices that form those libraries may have express and at times unique provisions about access.[3]
So, to be clear: NO PUBLIC LIBRARIES should rely on this answer (unless you are using it to help a private museum answer questions about enforcing its code of conduct). [4]
Okay, with that established, here is the answer:
At the heart of this question is the charter (or certificate of incorporation) and bylaws of an organization. Close to the beating heart are its policies.
In New York, most not-for-profit organizations are made "official" through a filing with the NY Department of State. However, many cultural not-for-profit organizations (including the New York Archives Conference) are made "official" via "chartering" or "incorporating" through the State Department of Ed.
Both types of entities--"chartered" organizations, and "not-for-profit corporations"--are "real" entities, created by law.
It is this act of creation--through charter, or incorporation--that sets the stage for how an organization gathers its participants and conducts its business...which is exactly the member's question.
So, before anything else, to determine "what legal ground we can stand on while enforcing our code of conduct" one must look at those documents, which are the key to the identity of the entity.
In this case, the Conference's certificate of incorporation[5] says nothing about membership criteria, but the Conference's Constitutions and bylaws[6] say:
3.1 Membership. Membership shall be open to all persons interested in the purposes of the Corporation. The Members and Board may establish such other criteria for membership, including a schedule of dues, as they deem appropriate.
Meanwhile the Conference's membership terms on its website[7] state:
The constitution and by-laws reflect as much as possible the traditional informality of NYAC. Traditionally, membership in NYAC has been based on attendance at an annual meeting. A single attendance put a person’s name on NYAC’s mailing list for a long time, resulting in a cumbersome list with many out-of-date addresses.
The membership year will coincide with the fiscal year of NYAC, from July through June. The annual meeting registration fee will include the membership dues (currently $15.00). For people unable to attend the annual meeting, membership dues should be sent to the NYAC treasurer to ensure receipt of the following year’s program. If, by some strange chance, a member pays the annual dues prior to conference registration in a given year, his or her registration will be reduced accordingly.
The authority of the Conference's board to adopt the criterial for membership, including adherence to a "Code of Conduct" that can apply to members (and guests), is found back in the bylaws, which state:
4.2 General Powers. In addition to specific powers delineated in the By-Laws, the Board may adopt such rules and regulations, not inconsistent with the Certificate of Incorporation, the By-Laws, or applicable laws, as it may deem proper for the conduct of its meetings and the management of the Corporation.
The "Code of Conduct" the member's question links to is one of the "rules and regulations" mentioned in Bylaws section 4.2.
Looking at the Code, you can see that it encourages certain (welcome) behavior, and bars certain (unwelcome) behavior, with the following being used to enforce the requirements:
All participants are expected to observe these guidelines during the conference or any NYAC proceedings, including virtual settings. If you may witness or experience any inappropriate or harassing behavior please report this concern using the form below.
Dial 911 for immediate medical emergencies or to report a crime. All reports to NYAC will be followed up and taken seriously in order to protect our participants from further abuse.
The policy then sets out multiple options for reporting, including an online form, which states:
We can't follow up on an anonymous report with you directly, but we will fully investigate it and take whatever action is necessary to prevent a recurrence.
...all of which brings us to the member's question: how can this be enforced?
First, it is important to consider just what is being prohibited. Here is the list from the Code (as stated at the bottom of the Code, this policy is inspired by Codes adopted by other archival organizations):
Unacceptable Behavior:
NYAC does not tolerate harassment of any shape. If any participant engages in any demeaning, abusive, coercive, discriminatory, or harassing behavior, appropriate consequences will be taken against such individuals. This could result in something as minimal as a warning or more serious as being handled by the authorities. Harassers may lose privileges to the conference(s).
Second, it is important to establish: as a not-for-profit corporation operating in New York, the New York Archives Conference already has to follow the below-listed laws:
So even without such a policy, there is not only authority, but could be an obligation, to receive reports of certain behavior, and deal with them as required by law.
A good example of this, from the Code, would be derogatory comments based on sexual orientation (which could be a violation of New York's bar of sexual harassment).
Third, it is important to consider that some of the conduct listed in the Code is criminal. Examples of that include:
For instances involving the alleged commission of a crime, a report and investigation could quickly become complicated by questions such as: will the reporter want to contact law enforcement? Does the venue have an obligation with regard to the incident?[9] Does the Conference have evidence that could later become relevant in a criminal proceeding?
And finally, it is important to see that this Code requires conduct that "rises above" the bare minimum set by various laws.
For instance, the Code bars interruptions, rudeness, and demeaning conduct. While sometimes such conduct can be a part of illegal "harassment" or even "coercion," barring even one minor instance of such conduct is more about setting the professional atmosphere for the Conference, rather than simply obeying the law.
"Setting the professional atmosphere" for an organization might also be called "setting the norm." By adopting this Code, the Conference is setting a norm of courtesy and respect, ensuring members are not interrupted or jeered when participating in Conference activities.
So how does the board enforce this "professional atmosphere"?
I could go on and on about the law,[10] but I have 5 tips:
Tip #1: Model the behavior you require.
The best way to enforce a Code of Conduct is to ensure the leadership within the group visibly complies with it (this will also ensure compliance by directors and officers, which will help avoid legal complications).
Tip #2: Repeat the rules often.
It may leave leadership feeling like a broken record,[11] but when it comes to new norms of behavior, repetition is your friend. It is great that the Code has its own sub-page on the Conference web site; for an event or meeting invitation, a link should be on all materials. Conference event leaders and speakers should get at least a 15-minute orientation on how to comply with and benefit from the Code during events, meetings, and online discussion (I am a fan of training through role-play). The board should revisit the Code at least once a year to discuss specific incidents and assess if the institution's response requires refinement.
By repeatedly describing and addressing the norms, they will be built into the foundations of the organization.
Tip #3: Follow through on enforcement.
The Conference's Code says "All reports to NYAC will be followed up and taken seriously in order to protect our participants from further abuse." What does that mean? That each report must result in a final summary as to how the incident was handled.
Unfortunately, there is no one way to ensure this level of follow-through. Some instances may be resolved simply by a discrete chat with a person to let them know that their romantic overtures are inappropriate. Other incidents may warrant an announcement to all attendees at an event ("We received reports of numerous interruptions. We want to emphasize that this is a violation of our Code of Conduct."), as well as more private action directed to specific individuals (a letter or warning). Still other incidents (hopefully very rare) could result in ejection from an event and/or a report to law enforcement.
The trick is that for every report received, there be a good summary of the reported conduct, and a thorough "final summary" as to how the incident was investigated and resolved. Again, there is no one-size-fits-all for this: some instances might be resolved with a paragraph ("The attendee was told that for the remainder of the Conference, no interruptions would be tolerated, and she agreed"), others could result in multiple pages and coordination with other organizations (for instance, if two co-workers get into a screaming match and call each other discriminatory names, be ready for lots of paperwork).
Tip #4: Have an established team, and a back-up team, to handle reports.
A reported incident under a Code of Conduct is not a trip for a part-time volunteer to fly solo.
Even if a report seems straightforward ("I sat down after presenting and PERSON gave me a long hug that made me very uncomfortable"), handling reports under this Code is not a one-person job. There are too many variables[12] that can trip up even the most diplomatic and well-intentioned individual.
If you are a designated report recipient, you need calm, steady back-up. This is why having a pool of at least six people who know the Code, and are ready to respond to a report, is critical, and using no less than two people to respond to each report is also important.
Tip #5: Know when to bring in a pro.
The member has asked:
Are there any considerations for the standards we use in evaluating a complaint? What should we use for the burden of proof? To what extent are we empowered to investigate claims? What happens if someone challenges any resulting board action? Can we be sued for taking action and besmirching someone’s professional reputation?
These are excellent questions fueled by perceptive concerns; even the most professionally handled investigation with maximum due process can lead to distrust, the forming of factions, destabilization, and even (as the last question alludes) claims of liability.
How does an organization avoid that?
For a policy such as this Code of Conduct, at an all-volunteer organization, it is good to have a sense of what things can be handled in-house, and when it is time to call in an expert.
Here are some broad guidelines for when to bring in a ringer:
Now, when I say "bring in a ringer," I don't mean a person to take over the whole investigation (although they may). And I don't necessarily mean a lawyer. I simply mean a person with the professional skills and past experience to help the organization consider issues beyond the Code, but critical to the organization: risk of personal harm, liability, legal compliance, insurance, and (a distant fifth, but still important) public relations.
For issues that are going to result in a "soft" correction ("Hi, we know people hug here on occasion, but please know that unless a person has told you it is okay to hug them, it's a Conference rule that you refrain"), there is no need to consult a pro.
But for "hard" corrections ("After repeated warnings regarding physical contact, you continue to impose unwelcome physical contact, and we must ask you to leave the Conference immediately") it is good to quickly check in with a pro.
For example, if I was consulted on the above "inappropriate hugging leading to a ban" scenario, I would ask:
I would then work with the client to craft a swift but thorough response that ensured clear documentation of the occurrences, ruled in or out any allegation of injury or illegality (a very prolonged hug can be a criminal act, or just a very welcome gesture, depending on the details), used a risk analysis to adopt an immediate response, and developed a clear path forward to effect a resolution.
The good thing is, with the power of leadership modeling, repetition, and training, most complaints will be in the "soft consequences" zone ("I was speaking and PERSON interrupted me to tell me our approach was 'junk' and say how much better their database would handle the content; I just want to know that you have let them know that is unacceptable.").[13]
If a serious complaint does come along, there is no "catch-all" due process I can recommend for responding. However, I can say that for each report, each response should follow this pattern:
In my experience, where all-volunteer organizations get in trouble is when a serious complaint (such as a complaint with injuries, or extreme rancor, or challenging harmful norms in the organization) is sat on (meaning: no action is taken, because they just don't know what to do). This, along with early identification of risks and planning to avoid liability, is why I advise bringing in a pro for "serious" matters.
Other than the "serious" matters, having a group of board members or a volunteer committee trained and ready to nimbly and promptly address concerns under the Code will be a tremendous service to your organization. I applaud the Conference for adopting a Code, and for thinking about the details of enforcing it.
I wish you many challenging-but-polite, innovative-but-patient, and rigorous-but-respectful events.
Thanks for a great question.
[1] I say "spectacular" because for me, questions like this are why I was first interested in studying law. My whole career is based on a 30-year fascination with how the law impacts what we can do and say. When a question stands at the apex of your life's work, that is "spectacular."
[2] I know "Indian" can be a controversial term, but that is the term in the law. In New York, the chartered Indian Libraries are The Akwesasne Library and Cultural Center the Seneca Nation Library, and the Tonawanda Indian Community Library.
[3] New York Education Law Section 253, which enables the creation of chartered libraries in New York, requires that all such libraries be "free" to their areas of service, and of course there are regulatory requirements about access, and system rules about services throughout a system, so caution is warranted when it comes to items that could curtail access to a chartered library.
[4] Shoo. Go away. This answer is dangerous to you!! (Ok, you can stay...but don't use this answer).
[5] Nerd note: The Conference is not a chartered entity, but rather a corporation formed through an application to the Regents. This means there is no charter, but rather, articles of incorporation that bring it into "life."
[6] Found on May 24, 2021 at http://www.nyarchivists.org/nyac/wp-content/uploads/2011/03/NYAC_bylaws_rev2010_final.pdf.
[7] Found on May 24, 2021 at https://www.nyarchivists.org/nyac/membership-information/.
[8] Since the Conference has no employees, their obligations will not flow from employer status, but there are still contexts where the civil rights laws will apply.
[9] For instance, if stalking takes place on a college campus--even if the Conference just rented the venue--the incident requires a very precise response by the college or university.
[10] And often do.
[11] Is "broken record" still a thing? Perhaps we should start saying "repetition code."
[12] Gender, cultural, class, language, power balance, race, religion, and perceived bias issues, to name just a few.
[13] Just a small note: when a policy like this is first enacted, it may feel like you are getting a lot of complaints. Actually, this will be the very normal process of a group adjusting to newly established norms.
[14] The standard choices are "preponderance of the evidence" and of course "beyond a reasonable doubt." Either is fine, it just should be uniformly applied.
Tags: Archives, By-laws, Historical societies and museums, Non-profits, Policy, Code of Conduct, Conferences and Events
If a nonprofit organization is unionized, may they have volunteers as part of a collaborative effort with another organization for a service that is not currently provided? For example, could they collaborate witha volunteer organization for an outreach service that is not currently provided.
This is a very good question, since the use of volunteers to supplement or replace work typically performed by union employees can most definitely be a violation of a collective bargaining agreement.
In one case[1] from 1981, a school district on an "austerity budget" used volunteers to set up (and then clean up) district facilities for student sports--a task typically performed by custodial workers under a collective bargaining agreement ("CBA"). An arbitrator found that the district's use of volunteers to perform the unionized workers' tasks violated the CBA, and the workers were owed pay for the work they should have had the opportunity to perform.[2]
That said, schools, libraries and not-for-profits with unions routinely use volunteers for all sorts of things; clearly, not all use of volunteers risks violation of a CBA. So, my plain answer to this question is: "yes, if the library is careful."
The rest of this reply sets out what I mean by "careful."
First, any not-for-profit has to exercise caution when using volunteers, because (as the member's question points out) there can be concerns that some use of volunteers violates the labor law.
The NY Department of Labor has really good basic guidance on this at https://dol.ny.gov/system/files/documents/2021/03/p726.pdf
In relevant part, that guidance says:
Unpaid volunteers [at an NFP] may not:
• Replace or augment paid staff to do the work of paid staff
• Do anything but tasks traditionally reserved for volunteers
• Be required to work certain hours
• Be required to perform duties involuntarily
• Be under any contract to hire by any other person or business express or implied
• Be paid for their services (except reimbursement for expenses)
Considering this guidance, when I work with libraries and other not-for-profit organizations who are considering using volunteers (no matter what the work for the volunteers will be, and whether or not there is a union), I advise that the organization have a volunteer policy.
The volunteer policy should cover all the concerns raised in the bullets above, as well as address risk factors such as placement letters confirming the terms of volunteer service, safety, insurance, and when a library using volunteers will conduct background checks.
Second, when I work with libraries and other not-for-profit organizations who are considering using volunteers, who also have one or more unions representing their employees, I stress the need to work with the union(s) pro-actively to confirm that an activity performed under the volunteer policy is not regarded as replacing paid/union workers.
There are a number of ways to achieve this confirmation.
The most formal way would be accomplished through a broad exclusion clause in the union contract(s) so every program does not present an ad-hoc task (but that could be a hard thing to fight for at a negotiation). A sample clause for that could be:
It is understood between the Parties that volunteer service performed per the Library's "Volunteer Policy" to enable events and programs that are not part of the Library's Plan of Service are not regarded as replacing or supplementing union members.
However, if such a clause is not a part of the standing collective bargaining agreement, a simple exchange of emails, or a more formal signed memorandum addressing only one type of volunteer activity, can be used to confirm this understanding.
The goal in all cases is to have clarity about what service is being performed by the volunteers, and to be able to show an affirmative agreement that it is not negatively impacting the experience of the workers in the union (which risks assertions of breaching the contract). Since the perception of "negative impact" (and breach) can vary from place to place, this is not an understanding to pursue after-the-fact nor without a solid understanding of the legalities and subtleties of the situation.[3]
Third, even if a union is amendable to it, I would caution a library against using volunteers for any service that is part of a library's Plan of Service, since that can undercut the data needed to support adequate state/local funding. Volunteers can be invaluable assets, but a library should always be able to function as required by law without them.
Fourth, if all the other cautions and no-no's listed above check out, it is vital to have a very clear agreement with the collaborating organization outlining the nature of the service, and each parties' roles and responsibilities for it. This ensures the risks and liabilities posed by offering any program to the public are properly balanced, and the library isn't taking risks for the actions of volunteers provided by another organization. I know it sounds impolite, but when it comes to volunteer services from a third-party, a not-for-profit must look a gift horse in the mouth.[4]
In many ways, it's a new world out there. For libraries seeking to innovate and work with other organizations to co-produce new programs, the above-listed cautions can set the stage for using volunteers without worrying about violating a union contract.
Thank you for a good question.
[1] (Onteora Cent. Sch. Dist. v Onteora Non-Teaching Empls. Asso., 79 AD2d 415 [3d Dept 1981])
[2] After the original decision cited in footnote 1, this case takes a lot of twists and turns through different rulings involving the education law and the authority of arbitrators. But the takeaway for purposes of this answer is: "Yes, use of volunteers can violate a CBA."
[3] For this reason, whenever possible, an attorney who knows the volunteer policy, knows the details about the service to be performed, and knows the union contract, should be consulted in advance.
[4] Of course, libraries and other organizations can host volunteer services (have them on site, but not co-sponsor them) provided by other organizations (such as Literacy Volunteers) without having to worry about these issues quite as deeply. "Hosting," rather than "collaborating" is a way to work with other organizations (and their volunteers) while not exposing a library to an assertion of violating the labor law, a CBA, or incurring unnecessary liability.
Tags: Labor, , Non-profits, Policy, Unions, Volunteers
[An association library asks...]
A local bank that we have an account with has gone public. They sent information to invest in shares or stocks of the company. The opportunity to invest in our community was intriguing but we were not sure it would be legal since we are a non-profit. It would be affordable even as a small minimum amount and we had the funds to invest. We would not use money that was levied by taxes only unrestricted donations. Could we have invested in a bank, or a stock, share of a public company? We were not given much time so we are not investing at this point but would like to know for future reference. I contacted our investor that we have in other funds and they did not feel comfortable advising without legal input.
Thank you
This "Ask the Lawyer" answer is being composed on December 28...that cold, snowy time between Christmas and New Year's, when the courts (even during non-COVID times) are slow, staff are on holiday, and lawyers sit around thinking about catching up on filing, or even (gasp) leaving the office early to shovel, or take their kids sledding.
This quiet, contemplative "winter lull" is the perfect time to consider questions about investments held by not-for-profits. Why it that? Because the answer must—no matter how carefully edited, designed, and written for clarity—be extensive, and therefore long.
But that's okay, because the deep mid-winter is the time for stories. So, grab a mug of cocoa, snuggle into a blanket, and get ready to read:
Prudence: Tale of Library Investments
Chapter 1: Extra Money
It was a cold day, but then again, in New York, most winter days are. The Library checked its old boiler system and found that, despite certain pangs, it was going to keep the heat running that day. This was good, since even with the staff offering only services curbside, the Library's inhabitants would be happier if they didn't have to wear fingerless gloves while using the computers.
Assured that its occupants would be warm, the Library thought about an exciting new development: money. Based on what it heard during the Zoom board meeting last night, due to some donations, the Library had some to spare.
This notion of "spare" money was new to the Library. From its founding in 1885 through to the present, it couldn't recall having too much extra. And even when the bank account got ahead, the Library found a way to spend it down: a new wing, a ramp, and one memorable year, a completely new roof.
The Library sat on its strong, stone foundation and recalled the discussion of the board. "We can start an endowment!" said one. "No, we can just set it aside," said another. "We must invest it," said a third. "Can we do that?" asked another. And finally: "We must research what to do," said the board chair, sounding prudent and wise and thoughtful.
And everyone had nodded or put their thumb up in agreement, as people in Zoom meetings are wont to do, before putting up their thumbs again to adjourn.
Chapter 2: Research
The Library was still recalling the ins-and-outs of the meeting (no new carpet this year; but a slight raise for the Director, who had been "a rock," according to the chair of the board), when it recalled what the board had committed to do about the "spare" money: research.
Hey, the Library thought, I can do that. And, firing up the internet on a computer in the corner,[1] it accessed Lexis-Nexis to see what it could do.
When the Senior Clerk showed up for work the next day, she found this, sitting on the printer:
To the Board:
I am so pleased the library has acquired some spare money at a time when I do not need repairs, new shelving, or capital improvements!
While you might want to think about having the boiler replaced, I have taken the liberty to research some options for investing this windfall.
First, it appears that a not-for-profit corporation like this library should have an "investment committee." Information on that is here: https://www.charitiesnys.com/pdfs/sympguidance.pdf
Second, it seems that if the library is to have any endowment or investments, it should have a policy about the "prudent" management of them. The New York Attorney General's guidance on that is found here: https://www.charitiesnys.com/pdfs/mifa-funds.pdf
Third, I can confirm that while an association library like me doesn't have to follow the "rules" (which are actually laws) regarding investments that public libraries do, those rules are regarded as a nice model to follow. The Comptroller's guidance on those rules is here: https://www.osc.state.ny.us/files/local-government/publications/pdf/investingpublicfunds.pdf
Fourth, since the Comptroller's restrictions on certain investments don't apply to us, if we are "prudent," adopt a solid investment policy, and follow it, we can invest in local initiatives, publicly held companies, and even "socially responsible investing." Some good commentary on that is here: http://www.nysl.nysed.gov/libdev/trustees/handbook/chapter11.htm
Fifth, if a contemplated investment is local, we must take particular care to document that all decisions regarding it comply with our "Conflict of Interest" policy (you know how things are in a small town).
Finally, we have to consider how this looks on our annual fiscal reporting, since we are a recognized charity under the Internal Revenue Code (what we refer to as our "501(c)(3)" status), and must file a form "990" disclosing how much we have in our investments. What that boils down to is: if people look us up at https://www.irs.gov/charities-non-profits/tax-exempt-organization-search, will we look like responsible investors?
And that's it. I was happy to help with the research. In return, it would be great if you would consider creating an ad hoc committee to investigate some preventative maintenance on my boiler. Oh, and when you re-point my masonry, be sure you use a contractor who will select the right mortar.[2]
Thanks and good wishes,
Your Library (Building)
Chapter 3: Finding a New Senior Clerk
They've dealt with Safety Plans. They've risen to the occasion with curbside. They've found a way to do readings and workshops and community events online. But they might draw the line at working in a sentient (some would say haunted) building that does its own not-for-profit management research.
THE END
Thank you for indulging my taste for a little end-of-2020 fiction! Hopefully, the Library's research guides you to the right places for legal compliance when making investment decisions.
My final guidance on this? To be safe,[3] turn off the computers at night. Then, to move forward with creating an endowment[4] or making an investment like the one described in the question:
And that is how your association library can invest in a "bank, or a stock, share of a public company."
I wish you many happy returns on your investments!
[1] Yes, in addition to being a boring, prudent and thorough discussion of how an association library must manage funds dedicated to endowment and/or investment, this IS a story of a sentient library encased within a historic sandstone structure. 2020 has been a long year! It's time to be fanciful!
[2] This is just me channeling my worst fears about old buildings into the story; if you undertake to "re-point" (fix the mortar between stones or bricks) make sure your contractor picks the right mortar. If they use something like Portland Cement, the mortar won't move with the stones/bricks, and it can cause horrific damage.
[3] And to be green.
[4] "Endowment fund" is often used as a catch-all term for a stockpile of money held by a charity, but in New York’s Not-for-Profit Corporation Law, it is defined as “an institutional fund or part thereof that, under the terms of a gift instrument, is not wholly expendable by the institution on a current basis..." [emphasis added]. Meaning: the use is limited to the income generated by the core amount (over-reliance on endowment income, by the way, is why 2008 was such a nightmare for many well-endowed not-for-profits, when investments tanked and interest was next to nothing).
[5] For example: seeking out funds that limit use of fossil fuels, and avoiding investment in companies with a record of abusive labor practices. For libraries, taking care the fund does not support regimes that suppress academic freedom/media, or otherwise limit access to information, might also be a key criterion.
Tags: Association Libraries, COVID-19, Investments/Stocks, Non-profits, Endowments
