RAQs: Recently Asked Questions

Topic: Transfer of Funds in School District Public Libraries - 08/11/2021
What law, regulation, or regulatory authority governs the budget transfer policy at a school distr...
Posted: Wednesday, August 11, 2021 Permalink

MEMBER QUESTION

What law, regulation, or regulatory authority governs the budget transfer policy at a school district public library?  Is there any case law or authority on that?

WNYLRC ATTORNEY'S RESPONSE

Quite a few laws, regulations, and regulatory authorities will impact the budget transfer policy of a school district public library.  Here are the biggies:

  • NY State Constitution
  • NY Education Law
  • NY General Municipal Law; and
  • GAGAS[1]

The trick to this question is that New York's school districts, which often (but not always) act as treasurer for an affiliated school district public library, must follow not only the above-listed laws and standards, but also must follow school district-specific rules for managing budgets.

What do those school district-specific rules say about budget transfers? As can be seen in the below excerpt from the "School Districts' Accounting and Reporting Manual," a school district can only transfer funds into the budget line of a contingent fund.[2]

Screenshot from pg 25 of the School DIstricts Accounting and Reporting Manual regarding Budget Transfers.

Other public entities, however, follow different rules...rules that are a bit more liberal about transfers between budgeted lines, since for inter-line transfers, "only" board approval is required...as seen below in the[3] Comptroller's "Accounting and Reporting Manual" for towns, villages, and other local government entities:[4]

Screenshot from pg 22 of the Accounting and Reporting Manual for Counties, Cities, Towns

SO: does a school district public library in New York have to follow the rules of its sponsoring district? 

Here is what the Comptroller has to say:[5]

Public Libraries — Sponsored by counties, cities, towns, villages or school districts in most circumstances [are included in a local government's accounting] because of the existence of financial accountability as evidenced by funding of operations, approval of and responsibility for issuance and payment of debt and the ownership of real property. While this is the norm, situations do exist where the library is virtually autonomous and could be considered a special purpose government.

...

Final determination must be made at the local level after considering ... the appropriate criteria as they may apply to both governmental and non-governmental units.... [emphasis added]

In other words--while I hate to punt on this question-- IT DEPENDS.  There can be no one answer; the determination must be made at the local level--and by a person professionally qualified to make the determination.

That said, as a professional, I will go out on a limb and say that every Comptroller audit of a school district public library I have ever read emphasized the difference between the library and the district they are affiliated with.[6]  Further, the Comptroller, in those audits, has stated that independent board authority and oversight by the trustees must be exercised, even when the school district functions as treasurer. 

For this reason, I would comfortably suggest the presumption should be that the requirement to transfer only into a contingent fund, per the excerpt first pasted above, applies solely to a school district, and not to a school district's separate public library, even if the school district is the custodian of the funds, unless the two entities are so integrated that the library operates as a "component unit"[7] of the district.

That said, for school district public libraries who must develop policy based on this distinction, the person to answer this question is the accountant finalizing your audits and financial statements, since they are the one with the professional duty here.  That said, once they have determined that answer at the local level, ALL parties (the school district, the library, their accountants, and their lawyers) should be in agreement as to the reason for the decision.

Thank you for a good question, and for this reminder of why I became a lawyer, not an accountant![8]

 



[1] Not a gathering of meat-clad divas, but rather: "Generally Accepted Government Accounting Standards".

[2] From https://www.osc.state.ny.us/files/local-government/publications/pdf/arm_schools.pdf, page 25.  If you read the excerpt deeply, you will see I am oversimplifying...and if you want to see how much I am over-simplifying, read the whole manual!  School district budgeting is an art.

[3] riveting

[6] A good example of this emphasis on autonomy can be found in the 2014 audit of the Fairport Public Library, found at https://www.osc.state.ny.us/local-government/audits/library/2015/06/12/fairport-public-library-financial-management-2014m-354.

[7] A good flow chart on how to assess of a library is a component unit is on page 35 of this manual: https://www.osc.state.ny.us/files/local-government/publications/pdf/arm.pdf.

[8] Full disclosure: I am married to an accountant...a CPA, no less.  This of course gives me no professional cred when it comes to accounting, but it does lead to some good conversation on chilly Buffalo nights (he also has an MLS, which makes him all the more alluring, of course).

Tags: Budget, Public Libraries, Audits, School Districts

Topic: Can Libraries Sell Items For Revenue? - 1/16/2019
Several of the library's board members feel that it is illegal for the library to sell anythin...
Posted: Wednesday, January 16, 2019 Permalink

MEMBER QUESTION

Several of the library's board members feel that it is illegal for the library to sell anything other than books and keep the money. They believe that the library cannot "ask for money". That function (selling items, asking for money, etc) is a function of the Friends group. We (the library board) can accept donations and NYS law indicates that we (the board) can sell books and keep the money but we cannot sell anything else, even if it is a gift basket that contains mostly books.

Is this true? Does this hold true for partnering with another non profit organization nearby who has a small gift shop? Can we (library board not the Friends) supply the gift shop and receive a portion of the profits?

The Friends do raise money for the library but it is difficult to pass this duty on to the Friends because it is difficult for them to part with money for the library board's needs. Hence our desire to do things on our own.

Any help with the rules regarding selling would be greatly appreciated!

WNYLRC ATTORNEY'S RESPONSE

Before we get to the main question (can libraries sell things to raise money?), we must refine something the member mentions in passing.

Yes, under Education Law §260, libraries can dispose of and sell used books—and the library trustees can retain the money.  But since that law actually requires any library[1] disposing of used books to hold such a sale (or to offer the books for free to another not-for-profit or government agency in their area), such revenue generation is more an obligation than a fiscal liberty.  In other words: the board can sell the books and keep the money…but the power comes with strings. 

As it happens, that is the theme of this entire answer!

So, is it “illegal” for a library to sell things and retain the money?  No, it’s not, but it is complicated, and the complications warrant extreme caution before undertaking such a venture.

Let’s discuss this authority and its complexities.

The ability to sell library assets and retain the revenue is rooted in the statutory authority of library trustees. 

As stated in Education Law §260:  “Public libraries…shall be managed by trustees who shall have all the powers of trustees of other educational institutions [created by the Regents].” [2]

These “powers,” with some modifications, track the powers of boards created by New York’s Not-for-Profit Corporation Law.  Two of those powers are:

1) the acquisition and sale of real property (land, buildings, easements); and

2) the acquisition and sale of personal property (books, cars, artworks).

For libraries, these powers come with a well-recognized financial autonomy.  As the New York State Comptroller puts it:

With respect to library moneys…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). (1993 Op St Compt File #93-15)

The practical effect of this autonomy has led the Comptroller to conclude (in two separate opinions):

The trustees of a city public library may sell two bookmobiles belonging to the library at either a public or private sale and may use the proceeds of such sale in such manner as they shall deem to be in the best interests of the library. (1983 Op St Compt File #83-9) [emphasis added].

It would seem that a library board of trustees may sell an unneeded library building, title to which is properly vested in the library board, without voter approval. (1980 Op St Compt File #125)[3] [emphasis added].

So selling items—and retaining the resulting revenue—is part of a library board’s acknowledged authority. 

Of course, this authority is not unchecked. [4] As the Comptroller noted in a 1995 Opinion, the fiscal autonomy of a public library is accompanied by a requirement for absolute transparency:

…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. (1995 Op St Compt File #95-30)

In other words: the revenue raised by a sale can be retained, but must be spent in a manner consistent with the library’s plan of service, must adhere to relevant procurement and accounting procedures, and must be properly reported.

And there are more “strings:”

First, even when allowable, not all revenue generated by a not-for-profit entity is entitled to be free of tax.  “Unrelated business income tax” (“UBIT”) is risked when commerce unrelated to the mission of a not-for-profit generates revenue.  This is by no means a bar to a not-for-profit generating some revenue, but is a potential accounting burden, mission distraction, and cost.

Second, but perhaps most important, a library should never accustom the public to the notion of libraries independently and routinely generating revenue. 

Operational funding is the function of a library’s supporting territory and the state.  The public should never get the impression that libraries self-fund; libraries are by law a free resource serving their public, and should be funded

And as emphasized in Comptroller Opinion #95-30, above, a funding entity can consider library-generated revenue and donations when it’s time to levy taxes.  Translation: generate revenue at your own risk.

So: yes, the boards of public, school district, special legislative district, and association libraries have the power to sell things and retain the revenue, but if they do, each in its own way should be very careful to:

  • Follow its own charter and unique rules;
  • Follow all applicable laws and regulations, and know it will need to externally report the sale and use of the money;
  • Never create the impression of charging its members for services;
  • Not engage in activity that would create “UBIT” (unrelated business income tax), without specific advice from legal and tax professionals;
  • Conduct itself with fiscal transparency; and
  • Not make any revenue-generating activity a function that could risk the reduction of public funding. 

For a board seeking financial flexibility and responsiveness, these “strings” can be very limiting.   This is where budgeting should help out. 

Rather than conducting their own fund-raising, all boards should explore designating a small part of the library’s budget for board-identified needs (what the member calls “the board’s needs”), so long as those needs are consistent with the library’s plan of service and overall best interests, and the spending is appropriately documented and approved. 

For instance, a board can budget for a strategic planning retreat, an emergency fund, an external consultant, or a unique event for the library.  A library investment fund’s annual revenue can be reserved for a particular use.  The board just has to bear in mind that all these actions will be reported in their publicly disclosed library budget, and so must be easily perceived as mission-related, prudent, and proper.

This why library budgeting is both an art, and a science.[5]

Now, to the final part of the member’s question.  These issues of compliance, transparency, flexibility, and propriety are the very reasons why public libraries have “Friends” (not-for-profit corporations with missions to support a library).  

Every library board of Trustees should feel they can look to their “Friends,” for mission-aligned support.  In an ideal world, the board-approved library budget handles all operational needs, while the Friends’ budget helps out with added layers of special events, acquisitions, and programs.  And when planning for capital acquisitions and improvements, it’s a strategic all-hands-on-deck.

Of course, we don’t live in an ideal world; the operations of two separate not-for-profit entities can be tough to coordinate and align.  With that in mind, I encourage every library board to review the “Friends” section in most recent NYLA “Handbook for Library Trustees in New York State.”  This invaluable resource sets out solid tactics for cultivating and reaping the benefits of a Library/Friends relationship (something it’s easy to write about, but often hard to do).

Thank you for your question.



[1] If that library receives over $10,000.00 in state aid.

[2] We’ll use public libraries as our example, but the complexities I list impact ALL NY-chartered libraries. That said, association libraries have fewer budget-reporting and procurement-related obligations. 

[3] In New York, any sale of real property or donated assets by a not-for-profit corporation should be assessed to see if it requires approval by the New York State Attorney General.  See?  More strings.

[4] Many, many things, the first three being: the library’s unique charter, bylaws, and fiscal policies.

[5] For a great breakdown on the fundamentals of library budgeting, visit: http://www.nysl.nysed.gov/libdev/trustees/handbook/chapter11.htm

 

Tags: , Budget, Policy

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