What, if any, are the ramifications if a school district public library board of trustee member refuses to sign the code of ethics and/or the conflict of interest/whistleblower policy?
I am sure there is a very interesting set of facts, personal convictions, and conversations behind the stark facts presented in this question (there always is). But we’ll address just the stark facts.
Because a library’s Code of Ethics, Conflict of Interest Policy, and Whistleblower Policy are rooted in different areas of the law, a refusal to sign these documents creates an array of ramifications. We’ll explore each type in turn.
But first, it’s important to establish certain base factors.
In New York, most libraries (unless they are part of a larger institutions like a college or museum) are not-for-profit corporations chartered by the New York Education Department’s Board of Regents. This means that, just like other not-for-profit corporations registered with the New York Department of State, libraries are subject to the Not-for-Profit Corporations Law (the “NFPCL”). This includes school district public libraries.
Without getting too technical, this means that all libraries in New York are governed in accordance with not only their charters and bylaws, but the applicable parts of the Education Law and the NFPCL, too.
This governance structure impacts questions related to conflicts of interest, whistleblowing, and codes of ethics. With the basic features established, let’s look at the different type of policy in the member question.
Conflict of Interest Policy
Here is what the law says about a refusal to participate in the “Conflict of Interest” policy, as governed by the NFPCL:
The conflict of interest policy shall require that prior to the initial election of any director, and annually thereafter, such director shall complete, sign and submit to the secretary of the corporation or a designated compliance officer a written statement identifying, to the best of the director’s knowledge, any entity of which such director is an officer, director, trustee, member, owner (either as a sole proprietor or a partner), or employee and with which the corporation has a relationship, and any transaction in which the corporation is a participant and in which the director might have a conflicting interest.
So, to give a stark answer to the member’s question, per the law, no person should actually be elected to serve as a trustee until the nominee’s Conflict of Interest statement (the “COI”) is completed and submitted. In other words, if the COI is not turned in, that person should never initially be elected as a trustee (we’ll pick that back up in a few paragraphs when we discuss the election criteria for school district public library trustees).
A requirement to “sign” the Whistleblower Policy is a slightly different matter. Unlike the law related to conflicts of interest, the law requiring any not-for-profit with over 20 employees (or revenue in excess of one million dollars) to have a Whistleblower Policy does not come with a requirement for trustees to sign any document.
Of course, a refusal to abide by the Whistleblower Policy (for instance, a trustee failing to keep a report confidential), could result in a violation of the law, and the libraries’ bylaws, as well.
Code of Ethics
Public school boards must have Codes of Ethics, but libraries—even school district public libraries—do not. There is no requirement in the NFPCL, nor the Education Law, nor any applicable regulations, that a public library have such a code.
That said, to clearly express and enforce a library’s values, a Code of Ethics is often built into a library’s bylaws or adopted as a stand-alone policy of a library’s board. The bylaws, or policy itself, could also require that it be signed. Once it is a requirement of the bylaws or policy, it does not have the force of law, but it can be enforced by the board.
Refusal to Sign
Which brings us to: whether it a requirement of law or policy, the refusal to sign of a board member must be addressed under the library’s charter, bylaws, and the NFPCPL.
Under NFPCL §706, a board is empowered to remove a board member per the procedures in its bylaws. Therefore, if a board determines that failure to sign the Code of Ethics or Whistleblower Policy is unacceptable, or that a failure to sign a Code of Ethics makes the library non-compliant with the law, then that board member can be removed, provided the remaining trustees are careful to follow the bylaw’s procedures for doing so.
This can be a divisive issue, since I imagine someone could present a debatable reason for not signing a Code or other policy, but since a Code of Ethics or mission statement is something every board member must support as part of their service to the library, the root cause of the refusal might be just as serious as the refusal, and in any event, must be resolved. And that is, except for one wrinkle, the lay of the land.
School District Public Library
At school district public libraries, board members are elected per the requirements of Education Law §260.
§260, and by reference, §2018 of the Education Law, include very precise conditions for the nomination and election of a school district public library board member—none of which is a pre-vote signature on a COI, or a signed acceptance of a Whistleblower Policy or Code of Ethics.
Of course, per Public Officers Law §10, all school district public library trustees must take and file an oath of office “before he shall be entitled to enter upon the discharge of any of his official duties.” This means, somewhere in the “pre-term” area after the election but before the newly elected trustee starts working, there is a zone where they can, based on a refusal to take the oath of office, not be qualified to start the term.
The consequences of a refusal to sign a COI are a little less well-defined, but it is clear that if a board tolerates a refusal, the organization is not in compliance with the NFPCL. The refusal to sign a Whistleblower Policy is not controlled by law, but the failure to actually follow it is. And the failure of a board member to sign a Code of Ethics is a matter to be decided by the rest of the governing board.
What Happens Next?
The refusal to sign and participate in critical board policy cannot simply be ignored. It has to be addressed, and the rest of the board has to follow the rules as they address it.
Barring any obvious provision in the bylaws or wording in a particular policy, what does the board use as a playbook for dealing with this type of challenge? Upon confirming the factors leading to the refusal, a board’s executive committee, consulting with the library’s lawyer and working from copies of the charter and bylaws, must consider the facts, could develop a solution. The solution could be a revision of a policy to address a particular concern, or, in the case of an incomplete COI, removal of the member. In no event should this be done without the input of an attorney, since the stakes are high, and feelings may be strong.
Thank you for an important question.
 In their quest to impose order on the universe, lawyers often use capitalization to express when a “thing” is a “Thing.” For purposes of this answer, the various policies the member references are each Things, and so while certain style guides may disapprove, the capitals are there to stay!
 The way corporations are created in New York is a type of legal conjuring. For more information on this particular type of conjuring, check out the New York State Education Department’s Division of Library Development Guide at http://www.nysl.nysed.gov/libdev/charter/index.html, and Education Law §255.
 This application of the NFPCL is set forth in NY Education Law §216-a, which is a fun read on a rainy day.
 Intricate arrangements like this are why people like me have jobs!
 In the law, “director,” “board member” or “trustee member” all refer to elected members of the board of trustees.
 This is from NFPCL §715-a (c). This language, or something substantially similar, should be in every library’s Conflict of Interest Policy.
 NFPCL §715-b.
 §806 Section 1(a) of NY’s General Municipal Law.
 Boards of museums and other cultural agencies chartered by the Regents are required to have a code of ethics; see 8 NYCRR § 3.30.
 I cannot imagine a good reason for not signing a COI, unless the policy was badly worded, there is confusion about the policy, or the director really does believe they should be allowed to vote for their wife’s company to install the new library floor.
 It’s 2019. We really need to work on the pronouns in our legislation.
 As but one example of this, see 2001 Op Comm Ed No. 14,710
 Or the trusteeship committee, or the board, working as a committee of the whole…whatever group will ensure thorough assessment and the preparation for, if needed, a removal vote.
Beginning on October 9, employers in NYS are required to make interactive training which meets state outlined minimum standards to their employees to combat sexual harassment in the workplace. As a cooperative public library system which serves a membership of public libraries including those which employ 1-3 staff members, we would like to support our members by providing the training centrally. We have no governing or financial authority over these independent libraries. Their employees are not our employees.
Can we provide training centrally for the employees of member libraries, as long as the training itself meets the minimum training standards?
Do different levels of employees need to be provided with different training sessions, for instance do library staff persons need to be provided a training space free of the library director?
Do trustees serving on library (or any non-profit) board need to participate in this training and if so, do they need their own session?
It is my understanding that training can only be shared if all the institutions have agreed to the state version of the policy AND been given the state created training module. Is that true?
The member is right: New York State has taken the huge step of requiring ALL employers—whether they employ one, or one thousand—to train their people to recognize and report sexual harassment and illegal retaliation.
But this training requirement does not stand alone. Also as part of the amped-up law:
The resulting need to revise policies, adopt reporting forms, and organize trainings has hit many strategic plans and budgets hard. Libraries, who always feel budget pressure, are among the not-for-profits feeling the pinch.
Since this law passed along with the budget this spring, I have been counselling clients that this training requirement should not be viewed as simply another unfunded mandate (although it is), but an opportunity. What kind of opportunity? An opportunity for library leadership to gather and train their valued people to recognize and reject discriminatory behavior right from the start.
But at the end of the day, no matter how worthy the topic, convening personnel and hiring a qualified trainer costs money. Which brings us to the member’s great questions (underlined below).
First Question: Can we provide training centrally for the employees of member libraries, as long as the training itself meets the minimum training standards?
My answer to this is…Hold on. Before we talk about resource-sharing, let’s talk about scope:
Trustees, interns, and volunteers should be part of this training. 
Why trustees? When a small institution has a concern related to sexual harassment, trustees become front-line decision-makers. Further, trustees are generally the “supervisors” of directors—and the new law specifically requires that supervisors be trained. And finally—but most critically—library trustees set the tone for mission and leadership at the library. You cannot change or evolve a library’s culture without trustee involvement.
Why interns and volunteers? This new law comes with liability for harassment directed even at “gig” workers. This liability can be caused by any person acting on behalf of the library—even a volunteer. So every person who works at the direction of your institution should know this law, and how to work within it, together.
With that scope of attendance in mind, based on the guidance from the state thus far, if the policy and reporting form track the model policies provided by the state: my answer is YES.
Second Question: Do different levels of employees need to be provided with different training sessions, for instance do library staff persons need to be provided a training space free of the library director?
NO! In fact, I believe a library would lose much of the value of the sessions if it did so.
Why is that? While the stark requirement of the policy is to review the law, a side benefit of such a training is creating an esprit de corps for combatting bad behavior together. That can best happen if each level of authority—from trustee, to supervisor, to employee to intern or volunteer—hears and honors the obligations of the other.
If the different authority levels are balkanized into different trainings, a valuable opportunity to build trust and accountability in service to the library’s mission of equal access is lost.
Third Question: Do trustees serving on a library (or any non-profit) board need to participate in this training and if so, do they need their own session?
The new law does not mention training trustees or directors specifically. But since boards generally supervise the Director or Executive Director, and are responsible for a library’s legal compliance in all matters, it is my conclusion that library trustees must be trained.
And—although my comments above recommend against it—they can be trained separately.
There is a related area, however, where separate training might be appropriate and warranted. In this day and age, governing boards should know: 1) the library’s insurance coverage for sexual harassment/discrimination claims, 2) the procedure for notifying the insurance carrier of a claim, and 3) how and when to call in third-party investigator to look into a complaint. Having trustees aware of these things, before a mandatory training under the new law, would be optimal.
Fourth Question: It is my understanding that training can only be shared if all the institutions have agreed to the state version of the policy AND been given the state-created training module. Is that true?
Let’s start this answer with what a library is looking for when arranging the required training—a required element of which is a live, in-person trainer that attendees can ask questions of.
What does the library need from this trainer? At bare minimum, the trainer needs to provide a session that meets the requirements of the law. Therefore, my guidance to those arranging trainings for a single entity is that the contract or hire letter contain assurance such as:
On [DATE/S], [PROVIDER] will provide [SINGLE INSTITUTION] with an interactive session based on the State of New York’s “Model Sexual Harassment Prevention Training” guidance and [Institution’s] Sexual Harassment Policy and Reporting Form. When the training is complete, trainer will certify that all elements for sexual harassment trainings required by applicable NYDOL and NYDHR guidance, and the laws of New York, have been met.
For a multi-institution training organized by a membership alliance or network, I suggest that the contract or hire letter contain some extra details, such as:
On [DATE], [Provider] will provide [Institution]’s members with an interactive session based on the State of New York’s “Model Sexual Harassment Prevention Training” guidance and [Institution’s] Sexual Harassment Policy and Reporting Form. When the training is complete, trainer will certify to each institution that all elements required by applicable NYDOL and NYDHR guidance, and the laws of New York, have been met.
As this is a multi-institutional training, to enable certification for each attending institution, the following practices will be observed:
Attendance is limited to 5 institutions, 60 attendees.
I based this guidance on what will no doubt be the next chapter in this legal saga: allegations of liability due to failure to properly update policies and train personnel.
The “certification” approach I am suggesting above is not required by the new law. Rather, it is designed to help your members, or your institution, create a record that will easily demonstrate that they endeavored to follow that law. It is designed to show that, even if a system or group had to share resources and do a mass training, a truly interactive and meaningful experience was intended. This is a key element of limiting liability.
Of course, in a perfect world, people attend sexual harassment trainings not only to limit liability and because they are compelled to, but to learn how to ensure such behavior is rare, quickly called out, and immediately corrected.
The importance of such training cannot be over-stated. When I was a 16-year-old page at a public library in the 1990’s, I was harassed by a patron. I was too young and inexperienced to know my rights, or what to do. Fortunately, I had the good luck to be on shift with an amazing assistant director. When the bad behavior started, this graceful woman walked over to the patron, and simply said, “This has to stop now.” And despite his displeasure, it did.
Many decades later, her unambiguous, dignified, and immediate action inspires me, as I hope it does you.
Done right, these mandatory trainings are an opportunity for your library’s team to practice this type of skillful handling. It is also a chance for supervising staff--who now have the term “mandatory reporter” in their job descriptions—to be assured that they are supported and backed up by informed and committed trustees.
Finding ways to collaborate and share resources to make such training and practice as accessible and rewarding as possible is a great initiative. Thank you for this excellent array of questions.
 Uber drivers who transport your interlibrary loans, for example.
 The State’s late issuance of required guidance—released less than 2 months before the effective date—didn’t help, either.
 I know, that’s not really the question. But this is very, very important.
 Yes, some of those volunteers might be very young! It will be the job of your trainer to train your employees both well, and appropriately.
 September 26, 2018. A I write this, they are assessing thousands of public comments—including some submitted by me—and that may change the basis of my advice. So if you are reading this in 2019, please check for updates.
 Just so you know, “my firm belief” is based on years of conducting anti-discrimination trainings, ten years as an in-house counsel at a university, and time as an Interim HR Director. I am not just going with my gut here.
 Nor does the current model policy, report form, or training materials. Considering that New York is a hive of corporations, this void is rather mind-boggling, but these State resources were compiled with haste. I imagine this will be addressed in later versions.
 Or some other reasonable number. This is just a recommendation. Basically, you don’t want the number of institutions or attendees to make the “interactive” requirement arguably meaningless.
 But by no means the only element. The most important one will be following the new law, and documenting that you are following it!
 Bernice Cosgrove.
 The patron was quite upset. In retrospect, he may have had some mental health concerns. These matters often come with complications that require tact, diplomacy, and compassion.