RAQs: Recently Asked Questions

Topic: Memorandum of Understanding for Municipal Libraries - 09/25/2020
I work with a number of municipal public libraries - some are village, others are town. Some libra...
Posted: Friday, September 25, 2020 Permalink

MEMBER QUESTION

I work with a number of municipal public libraries - some are village, others are town. Some libraries use their municipality's employee handbooks, payroll, services like snow blowing and building maintenance, and have the municipalities cut the checks.

It would be helpful to have a clear understanding that the libraries are not a department of the municipality and that the board of trustees is in charge of the library, hiring staff, evaluating staff, approving expenses, and have complete control of the budget.

It would also be helpful if there was a sample MOU that spells out the division of responsibilities clearly.

WNYLRC ATTORNEY'S RESPONSE

Many of the questions we get at "Ask the Lawyer"[1] relate to this concern.  As the priorities cited by the member suggest, the library-municipality relationship is a Big Issue.

I have worked with city, town, and village attorneys, in one way or another,[2] for most of my professional life. So I can understand why sometimes, if they are focusing on reducing liability or overhauling operations, a town board or a city mayor might be tempted to think of the library as "just another department."

But we know that is not the case.

With all that in mind, I am very grateful to have this opportunity to craft a pro-active answer to this issue.

I am going to let the requested sample Memorandum of Understanding—or "MOU"—do most of the talking on this topic.  For comments on why I have included certain things, you'll see footnotes and items in italics that should be removed from any final version (unless you have a really fun-loving and tolerant town attorney).

Caveats

Of course, with all things "template," this MOU should only serve as a boilerplate.

Further, libraries with very sensitive or less-than-ideal relationships with their municipalities might want to use this only as an internal guide for discussion.  It's not a fun fact, but it remains a fact that some municipal leaders could take a "request for clarity" as an act of aggression.

And as noted throughout, to the greatest degree possible, your library should consult their own attorney about the different considerations in this template.[3]  With that in mind, I hope this document is a useful starting place for that attorney, and I welcome calls from lawyers working with this document.[4]

And here we go:

USING THIS TEMPLATE:  Any guidance in italics, and the footnotes, should be removed before an MOU using this template is finalized.  If at all possible, the MOU and attachments should be reviewed by an attorney before signature.  Items in bold are non-negotiable; they are based on the law and are not subject to change.[5]

 

[PROPOSED] MEMORANDUM OF UNDERSTANDING

Between the [NAME] Library and the [MUNICIALITY]

This memorandum of understanding is between the [NAME] Library (the "Library") and the [INSERT NAME OF MUNICIPALITY] (["GOVERNMENT ENTITY" or "GE"][6]), which both serve the community of [INSERT NAME OF MUNICIPALITY] (the "Community").

This memorandum of understanding ("MOU") is entered into by the Library's Board of Trustees (the "Library Board") and the [AUTHORITY OF THE ENTITY[7]] ("[GE AUTHORITY]"[8]) and is intended to ensure clarity and unified purpose with regard to critical interdependencies between the Library and the GE.  Together, the Library and the [GE] are the "Parties" to this MOU.

As a living document this [first] version of the MOU sets forward both items of clarity, will be revisited by the Parties in the month of [INSERT] every [TIME SPAN[9]].  

Mission and Shared Purpose

The mission of the Library is [INSERT MISSION].

The mission of the [GE] is to [INSERT MISSION].

The Library and the [GE] share the mission-oriented purpose of serving the Community within the [GE] by [compose and insert "shared purpose"[10]]; this is their "Shared Purpose." 

 

The Parties

The Library is a public library chartered by the Regents of the New York State Education Department on [DATE], as shown in the most recent version of the Charter attached as "A" (the "Charter").[11]

As required by law, the Library is governed by a board whose authority is set by sections 255, 256, 260, and 226 of the New York Education Law, the Not-for-Profit Education Law, the Charter, and the bylaws of the library.  A copy of the most current bylaws of the Library is attached as "B."  

The [GE] is a Municipal Corporation incorporated under the laws of New York State in [YEAR]. 

As required by law, the [GE] is governed by [INSERT][12].

A copy of the [GE] Code (the "Code") may be found at [insert code link[13]]. 

[IF RELEVANT] The provision[s] of the Code pertaining to the Library are attached as "C."

 

The Relationship of the Parties

As a Regents- chartered entity, the Library is an independent corporation with the ability to own property, enter into contracts, employ a workforce, and maintain its own bank account for the management of library funds. 

Further, the Library is required by state law and regulation to employ adequate employees to staff the Library in fulfillment of its Plan of Service, which is attached as "D."[14]

Since the [GE] and the Library are two distinct entities, many of their operations occur independently of the other.  However, for the sake of their Shared Purpose, the leadership of the parties have determined that certain "Critical Interdependencies" are in the best interests of the Community.

These "Independent Operations" and "Critical Interdependencies" are itemized below, with comments or additional information in column 3.[15]

Operational item

 

Independent Operation or Critical Interdependency?

When possible, check your conclusion with your lawyer before making a final determination.

Important information or attachment

 

Ownership of Library Building

 

This should specify if the library or the municipality owns the structure housing the library. 

 

If the GE owns the structure but charges no rent (or $1), it is a "critical interdependency." 

If the library owns its premises, it is an "independent operation."

 

 

Attach a survey or schematic of the library's complete property as "F".[16]

 

Maintenance of Library: capital improvements

 

This should specify who takes the lead on capital projects and how the parties will work together for remodeling or building a new library.

 

 

 

By "take the lead," I mean: who signs the contracts for the work and manages the different factors in the capital project?

 

If the GE "takes the lead" on capital improvements, it is a "critical interdependency."  If the library takes the lead, it is an "independent operation."

 

 

 

 

The library should always have copies of warrantees and contracts related to capital improvements.

 

Maintenance of Library: emergency repair

 

This should specify what happens when a pipe bursts and you need to stop the water and fix the pipe, or who makes sure the elevator gets fixed promptly (we'll handle damage to library assets in another section).

 

 

If the GE is responsible for arranging emergency repair, it is a "critical interdependency." 

 

If the library does, it is an "independent operation."

 

 

 

This is a great place to list who to call in the event of a facilities emergency.

 

Maintenance of Library: landscaping and snow removal

 

This should specify if the library or the municipality does the work or contracts for it.

 

 

If the GE is responsible for external routine maintenance, it is a "critical interdependency." 

 

If the library does, it is an "independent operation."

 

 

This should establish not only the party responsible, but set the expectations for service (for instance, should the driveway be plowed before the employees arrive on a snowy day?  That sounds good to me).

 

If performed by a third party, the library should always have copies of contracts related to grounds maintenance, even if the contract is with the GE.

 

Maintenance of Library: routine cleaning

 

This should clarify the line between "routine" cleaning (like weekly vacuuming) and "non-routine cleaning" (like cleaning up when a printer cartridge breaks open near the rare book room), and specify if the library or the municipality does or contracts for the work.

 

 

If the GE is responsible for routine cleaning, it is a "critical interdependency." 

 

If the library does, it is an "independent operation."

 

 

If performed by a third party, the library should always have copies of contracts related to routine cleaning, even if the contract is with the GE.

 

Details such as when the cleaning is, and the levels of access of workers, are important to clarify.

 

Damage to library structure: insurance coverage

 

This should specify what insurance covers damage to library structure.

 

 

 

If the GE coverage applies, it is a "critical interdependency." 

 

If the library supplies its own coverage, it is an "independent operation."

 

 

The board should always have a copy of the policy covering the library structure, and the copy should be in the cloud, not just in the library.

 

Always.  This should not be left to chance.

 

Current insurance policy or amount determined for "self-insurance" by municipality is attached as "F."

 

Library Security Personnel

 

This should specify if the library or the municipality supplies any security personnel. 

 

 

If the GE is responsible for security personnel, it is a "critical interdependency." 

 

If the library employs or contracts for its own security, it is an "independent operation."

 

 

Any discussion of this or contracts relating to security should emphasize rights of access and patron confidentiality, and clearly establish who is "in charge" of the security personnel (who tells them what to do).

 

 

Library Security System, including any cameras

 

This should establish who pays for, monitors, and owns the system and any content on it.

 

 

If the GE is responsible for security personnel, it is a "critical interdependency." 

 

If the library employs or contracts for its own security, it is an "independent operation."

 

 

Any discussion of this or contracts relating to security should emphasize rights of access and patron confidentiality![17]

 

 

Insurance coverage for damage to library assets (collection, furniture, equipment)

 

This should specify what insurance covers damage to library assets (not the structure).  The type and amount of coverage should be assessed on an annual basis by the board of trustees.

 

 

If the GE coverage applies, it is a "critical interdependency." 

 

If the library supplies its own coverage, it is an "independent operation."

 

To help with this item, a library should have an inventory of its assets. 

 

 

The board should always have a copy of the insurance policy covering the library assets, and the copy should be in the cloud, not just in the library.

 

Always.  This should not be left to chance.

 

 

Current insurance policy is attached as "G."

 

Employees: who is the employer

 

 

The employer of the employees is the library, not the [GE].

 

 

 

This is not negotiable.

 

Employees: who processes payroll and tracks leave accruals[18]

 

 

If the GE issues the paychecks, it is a "critical interdependency." 

 

If the library runs its own payroll, it is an "independent operation."

 

 

Whatever entity (or third-party contractor) is doing this, it must be done properly and with proper retention of payroll records and paid time off accruals.

 

Employees: who administers benefits

 

 

If the library employees get benefits (health insurance, retirement) through the GE this is a "critical interdependency." 

 

If the library arranges its own benefits, it is an "independent operation."

 

 

Copies of Summary Plan Documents ("SPD's") or other benefit descriptions are attached as "H"

 

Employees: what coverage applies for workers' compensation, paid family medical leave, and disability?

 

 

If the library employees are covered through the GE, this is a "critical interdependency." 

 

If the library arranges its own coverage, it is an "independent operation."

 

 

This is another one to have absolute clarity on! 

 

Your library should have the most recent mandatory postings[19] up in an area accessible to employees, confirming this clarity.

 

Employees: what employee policies apply, and who is responsible for determining them

 

 

The employer of the employees is the library, not the municipal entity.  While the library may "borrow" some or all municipal policies, within the constraints of applicable law and regulation, the board of trustees determines the employment policies.

 

 

 

Sexual harassment/civil rights complaints, whistleblower complaints, resolving conflict of interest matters

 

 

These complaints must always be managed by the Library Board per the relevant library policy.

 

 

 

Library Emergency Response Plan(s)

 

Optional but encouraged

 

 

The entity responsible for the library's response in an emergency is the Library Board, not the municipal entity.  While the library may "borrow" some or all municipal policies, within the constraints of applicable law and regulation, the Library Board determines any emergency response-related policies.

 

 

 

Facility use policies

 

 

 

Regardless of whether the library owns the building, or is a "tenant," only the Library Board determines facility use policies of the library (for example, rental or free use of rooms and other library space).

 

 

A good facility use agreement establishes the rules of use, confirms if/how liability for the use is transferred (hold harmless, indemnification), and addresses if insurance is necessary.

 

Banking

 

Who hangs onto the money?[20]

 

 

 

Library funds are solely controlled by the library, regardless of where the funds are kept.

 

Even if the operational funds of the library are held by the GE, this "critical interdependency" should be confirmed as being in aid of separate and distinct library finances solely controlled by the Library Board.

 

 

Money can be a HUGE source of dysfunction between a library and its municipality.  Before picking any battles, the Treasurer, director, and board should have clarity about their expectations and goals for stewarding the funds of the library.  This is a good topic to stay in touch with your system, Library Development, and your lawyer on.

 

Fiscal controls (petty cash, cash handling policy, book-keeping, accounts receivable and payable, use of credit card, tracking restricted funds, tracking capital funds)

 

 

To the extent needed, and consistent with a public library boards autonomy over library finances, these policies are to be adopted by the Library Board.

 

 

Audit

 

Different libraries will have different audit obligations, but all are subject to audit by the New York State Comptroller.

 

Any audit of the library should be done with the awareness of the library board.

 

 

The last 10 years of audits should be accessible for review by the parties.

Procurement and disposal of library assets[21]

Although controlled to a certain extent by law, procurement and disposal of library assets are solely controlled by the Library Board.

 

 

 

Budget

 

 

The library budget is passed by the board.

 

 

 

Library System

 

 

The library board is the entity that decides to sign any Library System membership agreement.

 

 

A library facing a determination based on any of the factors in this chart should reach out to their System as soon as possible for assistance.  Although every system is different, they will be a critical ally in navigating these items.  Remember, you are not alone!

 

 

Custom factors special for your library

 

 

Every library is different.  Use this section to track custom factors that impact your library-municipality relationship.

 

There are so many cool, odd, special things out there in library world, I am only surprised when a day goes by and I haven't learned about a new one.

Directors and Officers insurance and/or indemnification of library trustees

If the GE provides coverage and/or indemnification[22], this is a "critical interdependency." 

 

If the library has its own policy, it is an "independent operation."

 

 

The board should always have a copy of the policy covering the library trustees and directors against assertions of liability in the course of their library duties.

 

Always.  This should not be left to chance.

 

Current insurance policy is attached as "I."

 

Acknowledged on behalf of the [NAME]Library on _______:

BY: _______________________________________________

 

Acknowledged on behalf of the [NAME of ENTITY] on _______:

BY:______________________________________________

 

 

Attachments:

A: Library Charter

B:  Library Bylaws

C:  Section of municipal code pertaining to library

D:  Library Plan of Service

E:  Survey or schematic of library property

F:  Current Insurance Policy (premises)

G:  Current Insurance Policy (assets)

H:  Benefit documents

I:   Current Insurance Policy ("Directors and Officers Insurance")



[2] My first experience with municipal law was when I worked for attorney Dan Seaman, who has served as the town attorney for many towns and villages in Niagara County, New York.  My former partner Daniel Shonn was the town attorney for Akron, NY, and I covered town meetings from time to time.  I worked closely with the Town of Lewiston and the City of Niagara Falls attorneys when I was the in-house counsel at Niagara University.  And lately, even though I love my city very much, I just can't stop suing Buffalo (on behalf of clients), so they are really getting to know me at the city law department.

[3] Critical difference between an "MOU" and a contract: an "MOU" is, by design, not intended to be enforceable-although it may recite items that are enforceable via other means (for instance, if they simply recite something that is mandatory under the Education Law, which this one will).  For libraries seeking to elevate an MOU to an enforceable agreement, it is best to work with a lawyer from the get-go.

[4] (716) 464-3386, or adams@losapllc.com.

[5] Any NY library system that wants a fillable version of this MOU Template can write to Jill@stephaniecoleadams.com

[6] For this item, you will select whatever type of entity you are working with: city, town, or village.  For this template, we're going to call it the "GE" (for "government entity"), although that will make it sound like you are trying to make them turn right in the 1800's.

[7] The authority entering into the MOU will vary depending on the entity type.

[8] This name will also be modified to reflect what applies to your municipality: Town Supervisor, Village Board, City Common Council, etc.

[9] This "time span" should be selected to ensure you never have a fresh board of trustees and municipal leaders who don't know how things need to function.

[10] A nice "shared purpose" might be "the service and betterment of those living in our community."  It's nice to revisit the "shared purpose" every now and again so leadership is invested in it and it doesn't get stale. 

[11] Make sure you use the most recent version of the Charter.  An updated copy can be obtained via a request to New York State Education Department, Division of Library Development.  If there is enabling legislation, attach that, too, since the legislation can impact some of the variables in the chart.

[12] This is whatever combination of leadership calls the shots for the municipality: town supervisor and board, etc.

[13] I am sure I don't need to tell a library audience that most municipalities have their codes online, but I just love footnotes.

[14] Yes!  This MOU will need a binder or a routinely updated database to hold all the attachments!  Don't you love it?

[15] From what I have seen—and at this point, it's a lot—every library working with a municipality handles this differently.  It's like a Myers-Briggs personality test...endless permutations, even within similar types.

[16] Knowing the exact physical footprint of the library is critical!  Among many other things, this is how you set the boundaries for the limit on things such as, for example, smoking near the property.

[17] This is critical for compliance and clarity about patron records under the New York Civil Procedure Laws and Rules (CPLR) 4509.

[18] A not-so-fun, but instructive, read on this topic is found in the NY State Comptroller Audit found here: https://www.osc.state.ny.us/sites/default/files/local-government/audits/2018-09/lgsa-audit-library-2018-brentwood.pdf

[19] A list and copies of most postings is here: https://labor.ny.gov/workerprotection/laborstandards/employer/posters.shtm

[20] Extensive information on this topic is found here: http://www.nysl.nysed.gov/libdev/trustees/handbook/pltreasurer.htm

[21] A good example of this is in Ask the Lawyer https://www.wnylrc.org/ask-the-lawyer/raqs/68

[22] "Indemnification" is when an organization defends a director, officer, or employee in a lawsuit (like a discrimination claim).

Tags: COVID-19, Emergency Response, Public Libraries, Memorandum of Understanding, Municipal Libraries

Topic: Using tax levy or donated funds to purchase food for community - 4/30/2020
Could we use any of our budgetary funds as collected through our tax levy and/or funds received fr...
Posted: Thursday, April 30, 2020 Permalink

MEMBER QUESTION

Could we use any of our budgetary funds as collected through our tax levy and/or funds received from donations (restricted and unrestricted) to pay for food (dry goods, fresh produce and/or fruit) and PPE's which would be given freely to the public/patrons some of which may not be from our community (we would not ask them for a library card or ID)?

If so, could it be considered a program or if not what other budgetary designation would you suggest it be given?


 

WNYLRC ATTORNEY'S RESPONSE

Before I answer this, I am going to share a story.  Trust me, it’s relevant.

When the workforce restrictions and ban on large gatherings due to COVID-19 started impacting libraries, the first wave of questions to “Ask the Lawyer” were about continuity of operations.  Specifically, they were about continuing payroll and still offering programs, even though staff would need to work from home.

Because Executive Orders and public health restrictions were happening at a rapid pace, answers needed to be developed quickly. 

If there is one thing the lawyers hate, it is quick decision-making.  We like precedent, we like time for research, and we like ample time to reflect on the implications of our client’s decisions.   In a world moving ever-faster, this is one of the things I cherish about my profession: it demands reflection.

But with libraries waiting for input, I didn’t have the luxury of time.  My research indicated that—barring a union contract provision or other express intervening factor—job expectations could be temporarily altered and library programs could continue, re-tooled to meet social distancing requirements (a/k/a “online”) while ensuring legal compliance and limiting liability.  But I couldn’t take a week or two to decide.

So I did what lawyers do when we don’t have time to let advice ferment—I turned to another lawyer.

I called an attorney I knew would appreciate the nuances of a question involving municipal law, Education law, taxpayer money, and the all-seeing eye of the NYS Comptroller.  I laid out the thinking that would eventually form my answers, and asked him to poke any holes he could see (I think I said “Pretend you’re the attorney for an angry taxpayer”). 

He asked a few well-informed, testing questions, and when my legal analysis held up, I felt good. 

But then he asked:

“Cole, do you actually think when this thing is all over, the Comptroller is going to organize a posse and hunt down libraries for trying to help their communities? I mean come on…people are in real need here.  Who would do that?”

I laughed, and it felt good.[1]  I thanked him and said I owed him one (in my world that means he gets to ask me a similar favor, any time, night or day, and I have to deliver).

Here’s the truth, though: although I laughed, my secret answer to his question was: Yes.  Yes, I do think that when this is all over, the Comptroller could audit and expose fiscal mis-steps by well-meaning libraries.  And I am also concerned that frightened tax payers and municipalities, searching for a way to “solve” fiscal panic, could use any small lapses in compliance or transparency to try and reduce budgets next fiscal year (just when they’ll be needing their libraries to assist with ongoing community recovery).  That is why the member’s question is so important.

That said, I got into this business because I believe that law, when well-developed and thoughtfully applied, can ensure justice and create the conditions for a happy society.  And I think the law—even as construed by the Comptroller—will allow for the actions proposed by the member, without the concern that a prohibited gift[2] or shady transaction was engaged in.

How?

I’ll give you three solutions.

But first…

Some Necessary Background

As a primer to each solution, just in case you haven’t checked in on fiscal controls for public libraries, every reader should visit NYLA’s excellent “Handbook for Library Trustees” (2018 edition), pages 50-58.[3]  This section sets forth all the routine requirements for properly accepting, retaining, spending, and accounting for both public and privately sourced funding. 

The solutions below, and the steps to set them in motion, build off the assumption that a library is following the fiscal practices laid out in those pages.

And just one more thing…

 

Safety First

Okay.  Let’s say your board is ready to assess and approve budget adjustments to initiate the acquisition and distribution of food and PPE.  Your staff and some volunteers are rarin’ to go.[4]   All you need to do is sort out the legal stuff.

But before worrying about how to fund it, or how to characterize the initiative in the budget, the first thing to consider is safety.

No matter what situation the library is in, a written safety plan, informed by OSHA and CDC guidelines, and ideally, confirmed with the local County Health Department, is the first priority for any such initiative.  Before approving funds, a board should review the plan for safety, and be assured that it is as well-developed as it can be (and again, if at all possible, confirmed by experts).[5]

So with that “safety first” caveat, here are the three solutions:

 

Solution 1: Acquisition and Distribution Only (No programming)

Objective: The library will acquire and distribute food and PPE, without any educational programming component or further conditions for participation (people can just stop by and pick up what they need).

Action Steps:

Step 1: Organizers (who could be board members, or staff, or volunteers…any combination is fine) develop and, with a county health official, affirm a safety plan for the distribution of the resources.  This plan should include how the items will be acquired, transported, and picked up, and what staff and volunteer resources will be used. 

NOTE: to ensure the safety of employees and protect the library from any liability, changes to routine job duties should be confirmed in a short letter referencing the safety plan.

Step 2:  Considering the need they hope to fill, and safety parameters, organizers develop a procurement plan, consistent with library policy and pages 50-58 of the Trustee Handbook, for the supplies to be acquired.  This plan should consider the appropriate sourcing and selection of supplies (PPE meeting CDC guidelines, food suited to re-distribution), and the need to follow relevant procurement laws.

NOTE:  On March 27, the Governor issued Executive Order 202.11, which suspends the public bid opening requirements of General Municipal Law Section 103(2) (of course, 103 only applies to purchases exceeding $20k…that would be a lot of PPE!).

Step 3: The Treasurer develops a budget recommendation for a budget change that will fund the procurement plan, and confirms to the board that any private funds to be used are not barred by donor terms (if all of the steps in this solution are followed, it will be a legal use of tax levy funds).

Step 4:  The board looks through its mission and plan of service and selects the language in those guiding resources consistent with a distribution for the goods to promote the health or general well-being of the community.

Step 5:  The board verifies the above steps, verifies consistency with bylaws and library policies, and sets a meeting under the modified procedures of the Open Meetings Law to adopt a customized version of the following resolution:

WHEREAS it is the mission of the [NAME] Library to [insert] and the plan of service for the library includes [insert];and

WHEREAS the state is currently in a state of emergency as a result of the ongoing COVID-19 pandemic; and

WHEREAS owing to the pandemic and state of emergency, the library’s area of service is in an unprecedented state of need with regard to fundamentals and supplies for personal safety; and

WHEREAS, owing to travel restrictions and the need of essential workers to serve our community, some people within our area of service may not be card-holding members of the community, but still be in need of supplies that will protect the their well-being, as therefore the general health of our area of service; and

WHEREAS the board finds it consistent with the mission and plan of service to adjust the current budget of the library to allocate resources to assist those within our community by supplying fundamental resources to enable the promotion of health and safety during a time of emergency; and

WHEREAS because the library is uniquely situated and widely regarded as a trustworthy and centrally located institution whose resources are freely accessible to all, and regards it as mission-critical to continue that role at this time; and

WHEREAS the library staff has identified a written plan for the safe allocation of such fundamental resources, and such plan has been reviewed by appropriate health officials; and

WHEREAS the library staff has identified and the board has duly reviewed a proposed plan for the responsible and compliant procurement of such resources, which is attached to this resolution and included in the minutes of this meeting; and

WHEREAS the Treasurer has verified that any private sources of funding do not bar the proposed procurement;

BE IT RESOLVED that the current budget be amended to direct [$amount] from [insert] to the acquisition and free distribution of food and personal protective equipment during the state of emergency, and during any period of recovery (the “Community Health Initiative Plan”); and

BE IT FURTHER RESOLVED that the acquisition of such resources listed in the Procurement Plan shall be conducted and accounted for per all the required provisions for procurement; and

BE IT FURTHER RESOLVED that the library shall effect the distribution of the resources only as set forth in the attached Safety Plan.

 

Solution 2: A Public Health Program

Objective: the library develops a program, consistent with its plan of service, to educate participants on PPE and the importance of good nutrition during a pandemic, and after a short educational program, makes supplies available.  This could even include innovative and fun ideas, like a recipe from a local chef, or instructions for canning food.

Action Steps:

Step 1: Organizers develop and, with a county health official, affirm the content of a short educational program, as well as the safety plan for distribution of the resources. 

Step 2:  Follow all the steps in “Solution 1,” but add this “whereas” clause to your resolution:

WHEREAS the library staff has [developed/identified] a short informational program on personal protective equipment and the important of good nutrition, and such program has been [reviewed by/endorsed by] appropriate health officials;

And add this further action to the resolution:

BE IT FURTHER RESOLVED that in conjunction with the distribution of fundamental resources the library shall promote the short informational program identified in the Safety Plan.

And finally…

 

Solution 3: The Partnered Program

Objective: together with another entity, and per a written agreement, the library allocates financial, and perhaps other, resources to a joint public health initiative to acquire and distribute supplies.

This one I can’t provide a template for: the permutations are just too diverse.  I can only say, when working with another entity, the library will need to consider every element listed in the above solutions: safety (first, always), mission alignment, employee needs, budget, and proper vetting of the plan by appropriate health officials.

Because of the risks related to compliance, a collaborative approach (unless it is just a donation to one of the above efforts…with that, take the money and get it done!) should be only through a written agreement that has been reviewed by the library's lawyer.  For this reason, it could be more cumbersome than other approaches, but in the event of a worst-case scenario, confirming all those details will be worth it.

 

For All Solutions

For any of the solutions I have outlined above, a critical contributor may be the library's insurance carrier. Right after the organizers start developing the plan for safety, someone should give your carrier a call, just to make sure there are no “exclusions” from the policy or conditions for your library to consider.

How do you check in with a carrier on this?  Just tell them: “Some lawyer who writes about library legal issues said we should check in with you before we do this.”

While your insurance carrier is probably used to the library developing innovative programming and serving a wide swathe of the population, the distribution of food and PPE during a pandemic is something they might want to weigh in on.  That said, in my experience, most carriers will encourage your initiative.  They might ask questions about where the distribution will take place, who is offering the programming, and how you are sourcing the supplies. 

Since the answers might impact your planning, it is better to call them early in the process, rather than just before the board meets (telephonically, as allowed by Executive Order 202.6[6]) to vote.

And who knows?  They might even have some helpful hints for you as you undertake to support your community.   This whole thing is keeping agents and adjusters awake at night, just like the rest of us.

 

Thank you

Okay, once I start waxing on about insurance, it’s time to pack it in.  I hope this was helpful, and I hope it can contribute to your library meeting the needs of your community.

Thank you for a great question, for your determination, and your dauntless innovation.

 



[1] This image his rhetoric inspired in my head--an army of GAGAS-wielding accountants, riding horses across libraryland, handing out fiscal frontier justice—makes me laugh now, too (but also cringe).

[2] In violation of Article VIII, Section 8 of the NY Constitution.

[3] One cardinal rule at “Ask the Lawyer” is “don’t reinvent the wheel.”  If library resources have already been used to develop solid guidance on a topic, we simply refer the member to that answer.  Lucky for me, librarians are innovators, so there are always new topics to address.

[4] Some libraries and library systems may have determined that, because they are regarded as a subdivision of government, the current workforce reduction orders do not apply to them.  Others will be organizing a program with the restriction that employees must (as of April 28, 2020) 100% work from home.  Still others will be coordinating terms of employment with a union.  This answer presumes your library is working within its own, unique parameters.

[5] By stressing this, I don’t mean to imply that the member is not thinking about safety (in fact, the care the member is taking about legal compliance suggests to me that they place a high priority on safety).  I just want to make sure that in any initiative to assist during this time of emergency, safety is the first consideration on the table.  At all times.

Tags: COVID-19, Donations, Emergency Response, Municipal Libraries, Taxes

Topic: School Ballot Option for Public Libraries - 10/24/2019
Our public, municipal library wants to seek funding through a school board levy.  The boundar...
Posted: Thursday, October 24, 2019 Permalink

MEMBER QUESTION

Our public, municipal library wants to seek funding through a school board levy.  The boundaries of the school district we’re petitioning are outside (but include) our municipality.  Are there any legal impediments to a public, municipal library going on the school district ballot?  We have reached out to New York State Ed’s Division of Library Development and NYLA, but seek a lawyer's perspective.

WNYLRC ATTORNEY'S RESPONSE

Perhaps because our nation was born resisting taxes, few things can rile a close-knit community so much as a good old-fashioned tax levy.  This is one area where the legal issues might be simpler than the range of human emotions. 

That said, the laws governing a school district’s support for a library can present significant considerations, if not impediments, before it can be successfully deployed.  So let’s fly at 10,000 feet, and look at the lay of the land.

There are relatively few entity types that can levy taxes based on real property,[1] and school districts are one of them.[2]  In addition to facilitating school funding through those taxes (the school budget “levy”), districts are empowered to raise a separate amount for “library purposes.”[3]

This power to tax for the benefit of libraries comes with some very clear conditions.

First, the amount to be raised for the library must be listed as a separate item on the ballot; the voters must see it as distinct from the funds to be levied for the school(s).[4]

Second, if the proposition passes, the funds must be delivered to the treasurer of the library as soon as possible, and cannot be retained or mingled with district funds.[5]

Third, the amount of taxes attributable to library purposes must be separately stated on each statement of taxes.[6]  Voters should be able to easily discern the difference.

Now, here is where things get really interesting.

There are two ways such a proposition related to a library levy can get on a school district ballot: 1) a vote by library’s board,[7] or 2) a petition directly from the voters.[8]  Since 2007,[9] the precise amount of any proposed levy has to be endorsed by the library’s board[10] (this is so competing or even contrary funding resolutions can’t get on the same ballot[11]).  When a library board votes to request it, the proposition must be placed on the ballot—even if it lacks the support of the school board.[12]

This power can be used to the benefit of any public library: municipal, special district, school district, free association, etc.[13]  This is true even if the precise boundaries of the school district and the library’s chartered area of service don’t match up.[14]

How can that be?  Anyone who follows “library world” knows that there are numerous kinds of libraries: municipal (created by and with the boundaries of a city, town, or village), school district, special district (which can cross and combine municipal borders), and free association.[15]  The permutations of these libraries are vast, but all serve their communities without charge, and thus meet the definition of “library” as used in Education Law §259.  And thus, all qualify as a “library” that may be supported by a tax levy by a school district.

Here is how the New York State Commissioner of Education,[16] quoting an earlier case, put it as recently as 2015:

As stated in Earlville, a school district is among those entities enumerated in Education Law §255 and, thus, is authorized to vote taxes “for library purposes” pursuant to Education Law §259(1)(a).  Earlville noted that, “although only those entities specifically enumerated in Education Law §255 may levy a tax for library purposes under §259(1)(a) [citations omitted], there is no restriction in §259(1) regarding the type of library for which such taxes may be levied.[17]

Voters, of course, are free to reject the request for support (they can also bring a petition to cease the levy[18]). But the mere act of being asked gives the voters a direct opportunity to consider their community’s overall commitment to educational resources.  In library-philic New York, where we treasure books and learning, this is a critical commitment to education, information access, and community advancement.

It is also a serious vote, since once the levy has been established by the school district, it remains in effect each year until there is a vote to have it removed[19] (which, again, can be initiated by the library’s board, or the voters).

As described by the member, boards considering a school board levy are wise to gather (early) ALL the support they can as they plan for a school board tax levy proposition.  The State Education Department’s Division of Library Development maintains a great starter kit for an initiative.[20]  Reaching out to NYLA, as well as other library advocacy groups, can be critical.  And a lawyer with experience in education law (to help draft resolutions, track the paperwork, and have your back when the unexpected[21] happens) is an essential member of your team.

But while you assemble your team and resources, don’t forget “the people.”  As the famous Tip O’Neall[22] liked to say, “All politics is local.”  So while it’s essential to know a tax levy initiative stands on firm legal ground, nothing replaces careful cultivation of support[23] for your initiative.  That is where the allies listed above, and an attorney looking at the specific circumstances of your library (and always the latest case law), are essential.

Thanks for a great question on a very important topic.  Good wishes for a vote that supports democracy, community, and information access.

 


[1] They are listed in New York’s Real Property Tax Law, which is a fun read if you are lucky enough to be amused by tax law.

[2] See NY Real Property Tax Law Article 13.

[3] See NY Education Law Section 259(1)(a).

[4] New York Real Property Tax Law, §1322 (1) and §1324.

[5] See New York Comptroller Opinion 92-28, as well as Education Law §259(1)(a) and Real Property Tax Law, §1322 (1) and §1324.

[6] New York Real Property Tax Law, §1322 (1) and §1324.

[7] See Education Law §259(1)(a), and for some good color commentary on the process, see New York State Education Commissioner Decision 15,662, which established that once the tax has been turned over to the library, the taxing authority can’t demand it be returned, even if they have to give a taxpayer a correcting refund.

[8] Education Law §2035(2).  To see how this plays out in the field, check out Education Commissioner Decision # 13,891.

[9] See Bill S03542, 2007.

[10] §239(1)(a), again!

[11] This is due to the law being amended in 2007. The objectives of the amendment are detailed in the legislative “memo” for A05107 (2007). The impact of the changes is also discussed in Education Commissioner Decision 16,765. Buckle up if you explore this avenue…there is some quibbling.

[12] This broad interpretation of the word “library” as used in Education Law §259(1)(a) was established in New York State Education Commissioner Decision 12,423, regarding Earlville Free Library, in 1990.  Although §259(1)(a) was amended in 2007, the approach of “Earlville” as the case in known in library circles, was re-affirmed by the Education Commissioner in 2015 (see Decision #16,765, regarding Jamesville-DeWitt Central School District).

[13] As defined by Education law §253(2), that term includes any library established for “free public purposes by official action of a municipality or district or the legislature….”  Some time is spent on this definition in the “Earlville” decision, referenced above.  Note that the definition does exclude libraries within technical, professional, and public schools.

[14] This was also established in Education Commissioner Decision 12,423, regarding Earlville Free Library (1990).

[15] To say nothing of cooperative and federated libraries.

[16] You’re seeing a lot of citations to the Commissioner here.  That’s because per Education Law §2037, the Commissioner with “exclusive original jurisdiction over all disputes concerning the validity of any district meeting or election.”  See Education Commissioner Decision 14,571 (2001).

[17] Appeal of The Board of Trustees of the Earlville Free Library, 1990 Op Comr Educ No 12423.  It is worth noting that while §259 was amended in 2007 (17 years after Earlville) this principle was upheld in 2015 in Decision 16,765,regardingtheJamesville-DeWitt Central School District.

[18] This is broken down in a great Comptroller Opinion: 1981 N.Y. Comp. LEXIS 726, 1981 N.Y. St. Comp. 176.

[19] See New York State Commissioner of Education Decision 15,002 “Appeal of Beaver Falls Library” (2003), applying Education Law §259(1).

[20] Check out their guide “School Districts and Taxes for Public and Association Libraries: How the Partnership Works” at www.nysl.nysed.gov/libdec/libs/sdtaxes.htim.

[21] I would spend a paragraph or two on what “the unexpected” is, but of course, we can’t expect it!  That said, a good look at Education Commissioner Decisions numbers listed in these vast footnotes answer can give you a flavor.

[22] I just finished his autobiography, “Man of the House.”  An interesting read, and a great primer for anyone wanting an abject lesson about local, state, and national politics. 

[23] Taking care to abide by all restrictions and best practices for libraries and political activity.

Tags: Municipal Libraries, Taxes, Voting

Topic: Retirement Benefits for Employees - 11/28/2018
Are municipal public libraries obligated to provide retirement benefits for all employees? Does th...
Posted: Wednesday, November 28, 2018 Permalink

MEMBER QUESTION

Are municipal public libraries obligated to provide retirement benefits for all employees? Does the library board need to approve a motion to provide retirement benefits for all employees or selected employees? Does the number of hours pertain? Or does the employee qualify for state retirement system benefits through the municipality? Again - is it based upon hours worked?

WNYLRC ATTORNEY'S RESPONSE

Retirement benefits play a critical part in employee recruitment and retention.  Library leadership should carefully consider—and routinely re-evaluate—the role of retirement in the suite of benefits they use to attract and nurture personnel.

To craft the right retirement approach, leaders must consider not only the legal landscape of their  library, but the local job market, their recruitment objectives, and their retention goals.  The final approach should not only support the library’s plan of service and vision for its mission, but comply with all relevant law.  To ensure this, the plan and final documents should be evaluated by both leadership, as well as an HR professional and attorney.

Municipal public libraries crafting a retirement plan must work with local government;  this is because the retirement benefits they can offer flow from the municipality they are attached to[1].  For that reason, any municipal public library addressing retirement benefit issues should reach out to their municipality’s HR department and/or attorney. 

The member’s questions are a good jumping-off point for some general guidelines to this process.  To take them in order:

Are municipal public libraries obligated to provide retirement benefits for all employees?

No.  Per New York Retirement and Social Security System Law Title 2, Article 2, municipalities may resolve to participate and enroll their employees in the New York State & Local Retirement System (“NYSLRS”), but such resolution and enrollment is not compulsory. 

Once a municipality decides to enroll, the NY Comptroller’s Office helps with the initial assessment of costs[2].  After enrollment by the employer, precise rules govern which employees are eligible for what level of plan; a great summary of who qualifies, and how, is here: https://osc.state.ny.us/retire/word_and_pdf_documents/employers_files/employers-guide/section-5.pdf.

Does the library board need to approve a motion to provide retirement benefits for all employees or selected employees?

Yes and no.  A municipal public library’s enrollment in the NYSLRS flows through the enrolled municipality; [3] if the municipality is enrolled in the system, the (municipal public) library can participate.  That said, to emphasize employer autonomy, promote awareness, and ensure harmony of the retirement plan and benefits with other library operations, the board should be apprised of and vote on the retirement benefit, as well as its description within the employee manual and relevant policy.

NOTE: This “employer autonomy” aspect cannot be emphasized enough.  While great care should be taken by library leadership to coordinate certain employment-related matters with the municipality, a municipal public library SHOULD NEVER SURRENDER OR IGNORE THEIR AUTONOMY AS THE EMPLOYER.  There are a great many opinions[4] of the NY Comptroller (the go-to for municipal governance and budget issues) that emphasize the importance of this notion; it is a critical consideration and one deserving of a great deal of board attention and foresight (and professional input).

Does the number of [employee]hours pertain?

There are very precise formulas and enrolling, qualifying, reporting, and claiming NYSLRS retirement benefits[5], and employee hours are most definitely a part of those formulas. 

Hours are only a small piece of the puzzle, though.  The bigger parts are the details leadership will explore as they identify, and develop, a retirement benefit that supports the strategic direction and mission of their library.  That is a project that will take many hours of thoughtful work and exploration…but if undertaken with the right players, will bring great benefits.[6]



[1] Interestingly and somewhat famously (among the 14,000 or so library law aficionados in New York), this does not mean the municipality is the employer.  However, it does mean that many of the employee retirement benefits must (to a certain extent) be coordinated with the procedures and reporting of the local government.  NOTE: I invented the possible number of “library law aficionados,” but since I find this stuff fascinating, maybe 13,999 other people do, too.

[2] Information on kicking off the process of enrollment is here: https://www.osc.state.ny.us/retire/employers/employer_partnership/an_employers_role/becoming_a_participant.php

[3] As reflected in the excellent comparative chart on the New York State Education Department’s Division of Library Development Page: http://www.nysl.nysed.gov/libdev/libs/pltypes.htm.

[4] For instance, Op. State Comptroller 93-15, from 1993.

[5] A helpful guide on reporting hours to the NYERS is here: https://www.osc.state.ny.us/retire/word_and_pdf_documents/employers_files/employers-guide/section-6.pdf#search=%20libraries.

[6] Pun intended.

 

Tags: Management, Municipal Libraries, Retirement, Salary

Topic: Employee Sharing - 8/28/2018
Is it possible for a municipal library and an association library to share one employee? The assoc...
Posted: Tuesday, August 28, 2018 Permalink

MEMBER QUESTION

Is it possible for a municipal library and an association library to share one employee? The association library would handle payroll and manage benefits, the municipal library would pay the association library their percentage for the employee's time. Could this happen with two association libraries and one municipal library? Individually, our libraries are unable to offer full-time with benefits, but collaboratively, we could provide a full-time position. What are the legal steps to creating such a job share?

WNYLRC ATTORNEY'S RESPONSE

I have good news, and bad news. 

First, the bad news: most of the legal factors involved do not support this type of “job share.” 

Now, for the good news: the type of capacity-adding at the heart of the member’s question is feasible…with a slightly different legal structure.

What are the legal steps to creating such an arrangement?  For chartered libraries, they are numerous and intricate, but considering the goal (added service), the work might be worth it. 

Here are the factors to consider:

1.  The libraries’ chartered identity

The question cites a potential collaboration between a municipal and an association library.  Just in that coupling, there are issues, since depending on entities’ size and type, the institutions will have different staffing requirements.  When considering a capacity-adding staffing model, those requirements should be kept in mind at all times.

2.  The libraries’ bylaws and staffing policies

Staffing requirements and other factors impacting staffing might be recited in the libraries’ bylaws and policies.  So those documents, too, should be factored into this exercise.

3.  The libraries’ plan(s) of service

Does the resulting staffing schema fit into their respective plans of service? 

4.  Labor law details, such as workers’ comp, unemployment, FMLA, and ADA

Here is where the technical nitty-gritty, and the concerns that generally bar “shared” staff between separate entities, starts.  Whenever an employee is brought on to work at more than one legal entity, it is important to confirm who would actually be the employer, so the arrangement complies with state and federal labor regulations. 

One example of why this is important is workers’ compensation.  Per New York state law, if a worker sustains an injury on the job, that worker is covered by “comp,” and the employer is indemnified for (almost) any personal injury claim.  This protects both the employee (who gets some wage/salary continuance) and the employer (who generally does not face additional liability for the injury).  In a truly “shared” employee arrangement, with debatably two (or more) employers, the resulting ambiguity could result in a contested or denied coverage claim.

Another example of how a “dual employer” arrangement could be risky is revealed by  considering the American with Disabilities Act (ADA).  Under the ADA, employers are responsible for providing employees with reasonable accommodations for permanent and temporary disabilities; failure to do so can result in serious liability (and fines).  But with a “shared” worker, it can be tough to know who would have that responsibility…and be responsible for failing to follow the law.

There are many more reasons along these lines.

5.  Salary equity and benefits-related details

This is a critical one, because employees who are not treated equitably in comparison to other employees can have an array of legal claims.  Examples abound: If one library offers more paid time off than the other, how do the libraries offer the “shared” employee a fair and legally compliant arrangement?  If the libraries have different systems for evaluation and promotion, how does the employee advance?  If one library is found to be treating a particular class of employee unfairly, does that impact the other library?  While minimal staffing at the employing institutions might limit some of these concerns, even if there is one other part-time staffer to compare to, ambiguity could turn into liability.

6.  The actual legal relationship between the libraries and the “shared” employee

From the legal perspective, this is where the rubber hits the road.  For the reasons set out above (and many others), it would be almost impossible for both libraries be “joint,” employers: even if possible, it would likely be too risky.  But with another legal relationship, this resource-sharing might be feasible.

What is that “legal relationship?”  Well, it would depend, but the most feasible solution would likely be one library hiring an employee specifically to add to the capacity of other libraries.  In this model, there would be no “shared,” employment; rather, the first library would offer their employees as extra capacity on a contractual basis. 

In such a “Capacity Contract” scenario, money paid by the second (or third) library would not be a salary/benefit contribution, but rather, a fee for services (that happened to help pay for the salary and benefits of a full-time librarian).  The relationship would need to be carefully set out in a detailed contract and hiring documents that confirmed how any performance evaluation, employee discipline, civil rights, personal injury, and other claims would be handled.  And the factors I list above (starting with the identity of both libraries, and considering the various regulatory, bylaw, and policy obligations they have) would have to be assessed to see if it was even feasible.  Most critical would be: is adding to the capacity of others consistent with the hiring library’s plan of service?

With careful planning by leadership and trustees,[1]and input from an attorney and HR professional, this type of “shared” staffing could be built.  The end result would be:

  • a careful documented analysis of the relevant factors;
  • a carefully developed job description for the capacity-adding employee;
  • a contract between the library or system providing the additional resource and the library served. 
  • Hopefully, many more patrons served!

As I said at the beginning, this could be a fair amount of work.  But if it provides a small library with access to specific expertise and a diversity of talent it might otherwise not be able to afford, it could be worth it.  Just approach the details with care.

Thank you for this important question.

 


[1] In addition to those considerations, although it is not legal, I feel I must mention a quasi-political or strategic element. As we know, once taxpayers, municipal leadership, and other entities see cost-cutting, it is hard to close Pandora’s (newly efficient) box.  So while it is not a legal consideration, per say, being mindful of how any innovations in staffing efficiency will play out long-term is wise.  You don’t want a clever solution to become the tool of a permanent budget cut!

Tags: Management, Hiring Practices, Municipal Libraries

Year

0

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Topics

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The WNYLRC's "Ask the Lawyer" service is available to members of the Western New York Library Resources Council. It is not legal representation of individual members.