RAQs: Recently Asked Questions

Topic: Enforcing Code of Conduct - 06/04/2021
The New York Archives Conference recently posted a formal Code of Conduct (https://www.nyarchivist...
Posted: Friday, June 4, 2021 Permalink

MEMBER QUESTION

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

WNYLRC ATTORNEY'S RESPONSE

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:

  • New York State Education Department chartered or incorporated museums, archives, historical societies, and other non-public entities;
  • Not-for-profit charitable corporations (like a "Friends of the Library");
  • Clubs, fraternal organizations, benevolent societies (like a knitting club, a bike club, or athletic league).

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). 

  • Threats or acts of violence.
  • Intimidation or stalking.
  • Disruption of any speakers/panelists or any conference proceedings
  • Derogatory or unwelcome comments regarding a person’s race, gender, sexual orientation, religion, disability, lifestyle choices and practices.
  • Inappropriate physical contact or unwelcome sexual attention.

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:

  • Conflict of Interest requirements of the Not-for-Profit Corporation law;
  • (If it ever had the right amount of money or employees, or wants to meet some donor criteria) the Whistleblowing requirements of the Not-for-Profit Corporation law;
  • The New York Human Rights Law (barring illegal discrimination on an array of characteristics[8]) and other civil rights 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:

  • Stalking
  • Threats of violence
  • Unwelcome physical contact (this is of course highly fact-specific)

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:

  • If there is an allegation of criminal conduct, especially if there is an allegation of physical abuse or stalking;
  • If there is an allegation that-if true-would lead to suspension or permanent ejection from the organization;
  • If there is property damage.

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:

  • Is/are the complainant/s injured?
  • Is/are the complainant/s the recipients of the hugs, or a third party?
  • When was the hugger last spoken to about this?
  • Who has witnessed the behavior?
  • Is the person a paid speaker or ticketed attendee?
  • What dynamics are at play?
  • What is the venue?

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:

  • A written statement of the complaint (held in confidence by the Conference; there is no need to share this document with any party, and it should be considered confidential) NOTE: This is the phase where you consult an expert if things are serious;
  • An initial assessment as to if the complaint is bona fide (if it isn't, you document that, and things end there, except perhaps to explore if you need to address a confabulated allegation);
  • A process for collection of relevant evidence and designation of an appropriate deadline for wrapping up the process;
  • A consistently applied means of evaluating the evidence;[14]
  • If there is to be action based on a finding of fact, a chance for the accused party to set forth their perspective on the accusation (a private organization has no obligation to share evidence in this type of proceeding, and shouldn't, without very careful planning);
  • A final summary as to how the report was resolved (a "soft" resolution simply advising an accused party of the rules, but no penalty, or a "hard" resolution with conditions imposed), and how the resolution can reinforce the norms of the Conference (does there need to be both a "private" and "public" resolution?)

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."

[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

Topic: Special collections not recorded on institutions's ledgers - 01/27/2021
We received some questions from a chartered museum about weeding from the museum's internal re...
Posted: Wednesday, January 27, 2021 Permalink

MEMBER QUESTION

We received some questions from a chartered museum about weeding from the museum's internal research library:

  • What legal considerations govern weeding and/or deaccessioning the materials from a museum's library?
  • What if the museum’s library isn't sure how it acquired the materials?
  • What might the legal ramifications be if the institution were to transfer select items from their library to a historical society more in line with their content and origins?
  • Does the museum have the legal right to sell the materials at auction?

WNYLRC ATTORNEY'S RESPONSE

Put your sneakers on.  These questions require us to jump through several analytical hoops.

Hoop 1

First, a library that is part[1] of a chartered museum or historical society in the state of New York, when weeding materials, must figure out which, if any, of the materials within the library are part of the museum's official collection, and thus controlled by the museum's "collection management policy."

Most museums and historical societies maintain good records of this, and it's a yes-or-no question, so this first hoop is fairly simple.

 

Hoop 2

With collection status determined, any materials within the library that were "accessioned" (brought into the museum's official collection) under the collection management policy must also be "de-accessioned" per that policy,[2] before they can be weeded from the library's collection and thrown out,[3] donated or sold.

Any materials that were not accessioned into the museum's official collection are still assets of the chartered entity, but do not have to go through the de-accession ritual prior to what comes next.

 

Hoop 3

Next, the museum or historical society must determine if there are any conditions or restrictions on the materials, such as a donor agreement, a grant, or other contractual terms.  If there are any restrictions, those must be addressed.

 

Hoop 4

Next is to confirm ownership.  If the museum doesn't have a clear record of how the materials were acquired (either by purchase or donation), or if they were loaned to the museum and never picked up, the museum must follow the procedure in Education Law 233-aa to assert its ownership before it can consider any removal.[4]

 

Hoop 5

After doing what's needed to establish the materials' status, the museum can then--as governed by its own charter, bylaws, and policies--either 1) donate the materials to another charitable organization (transfer for free to an individual or for-profit organization could cause problems), or 2) sell[5] them for fair market value[6] to any organization it wishes (profit, non-profit, or individual).[7]

 

Contingent Hoop 6 (the "de-accession hoop")

Of course, sale or donation of any items that started out in the collection will be governed by the factors in the regulations governing de-accession (8 NYCRR 3.27).  This consideration was already raised in Hoops 1 and 2, but is so critical, it is worth mentioning again.

 

Contingent Hoop 7 (the "233-aa contingency hoop")

If the materials were "undocumented property" or "unclaimed property" under 233-aa, and the materials are to be sold, there is an extra consideration: any proceeds derived from the sale of the materials can only be use for "the acquisition of property for the museum’s collection or for the preservation, protection, and care of the collection and shall not be used to defray ongoing operating expenses of the museum." 

 

And with all those hoops complete, there you have it: a full cardio workout, based on assessing a museum's library's property's[8] status under the law.

 

I hope this analysis and advice are helpful (and good exercise).

 



[1] A museum or historical society cannot operate a library with circulation to the public without provisions in its charter.  However, a museum or historical society can operate an internal library for purposes of supporting the collection, and that's what we're talking about here. 8 NYCRR 3.27(f)(3).

[2] Which should follow the regulations set out in 8 NYCRR 3.27

[3] I have been told that most librarians do not have the same gut-wrenching aversion to the idea of throwing out books that I do.  Typing "thrown out" actually made me wince. 

[4] This is one of my favorite laws on the books, because it contains the magic formula for transforming an object of unknown origin, or an abandoned object, into the property of the museum.  That said, in practice, it can be a bit of a pain, because the formula contains multiple steps and a publications requirement.

[5] The last question, thankfully, requires no hoops: "sale" could certainly include an auction, or any other legitimate method of transferring title for consideration (money, or assets in-kind). 

[6] A sale for a nominal amount, or for less than fair market value, to a for-profit or individual can impact charitable and 501(c)(3) status.

[7] Since the library within the museum is not a chartered library, it does not have to follow the requirements of Education Law 226.6(b), requiring that materials be offered to a local charity or political subdivision.

[8] Could I sneak another apostrophe in there?  How about: "museum's library's property's boxes' cardboard's strength?"  Oh, yeah.

 

Tags: Deaccessioning, Historical societies and museums, Special collections, Weeding

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