As we look to re-opening our public libraries with abridged services, we want to limit the chances of legal challenge from organizations who seek to make a statement about government response to COVID-19 and social distancing measures. We are considering a recommendation to have a brief policy manual addendum with policy adjustments that supersede the policy manual, have a short review and renew period (aligned with the library board meeting schedule), and are triggered by an objective, external to the library, event. What elements would we need to include in this addendum to make it legally enforceable, while not re-writing the entire policy manual?
Take, for instance, a library's meeting room policy. For a library with a 2,000 sq ft community room, with a normal occupancy of 250 persons and a seated occupancy of 150 persons (fake numbers), in which the board meets every other month.
- Initial addendum policy would have a line which said "Meeting Room: The meeting room is closed to all groups. Policy approved April 27, 2020. Will expire June 26, 2020."
- At the June board meeting the board passed "Meeting Room: The meeting room will open for library sponsored programming July 1st. Registration will be required and limited to 20 persons to follow current social distancing guidelines. Policy approved June 26, 2020. Will expire August 27, 2020."
And so on.
What are recommendations for the pre-amble of such an addendum? What should we make sure to include in the board motion to enact the emergency policy addendum such that it supersedes the standard manual?
This answer is being composed on May 9, 2020. New York is still fully on PAUSE, but the Governor has divided the State into ten districts who must hit seven defined metrics to begin rolling back various restrictions. Careful prognosticators are cautioning that what is rolled back can also be re-implemented, so caution and flexibility are the watchwords of the times.
In this context, many libraries are considering a phased resumption or extension of operations, and to do so, may need to adjust many of their standing policies.
As the member’s question highlights, the stakes for such adjustments can be high. The greatest risk in taking emergency and temporary measures are that: 1) they are not legal; 2) they create legal but mission-averse collateral consequences; 3) they are legal and perfectly mission-aligned, but still just make people mad.
Right now, libraries don’t have the luxury of time to fully mitigate these risks. But collecting, assessing, and documenting some steps, a library can do its best to avoid them.
Here is how to do that:
Step 1: Inventory your board’s authority and obligations
Library leadership seeking to temporarily adjust library policy to address COVID-19 must first assemble the following:
Many libraries will already have these assembled from previous such exercises.
Step 2: Inventory the specific policies your library needs to adjust
This “inventory” should include a citation to each policy your library needs to adjust, the basis of the need, any legal compliance considerations, what the precise terms of the proposed temporary change are, and, as the member writes, the reversion trigger of duration of the change.
This sounds painstaking and arduous, and it will be. Fortunately, when it comes to the painstaking and arduous act of organizing information, libraries have a home team advantage.
And don’t worry, in the next step I give you a chart to sort it all out.
Step 3: Identify what’s needed: alteration of the policy, or complete suspension?
In some cases, a policy will just need some small, temporary alterations to continue serving the requirements of the law and the needs of the library and its community. However, some policies are so complex, or so rife with temporarily unsafe practices, they will simply need to be suspended.
Here is a chart template that sets the “inventory” categories of Step 2, with examples the two types of adjustments:
1. Policy or obligation to adjust
2. Basis of need to adjust
3. Law or policy governing change
5. Reversion trigger or duration
Example: Policy temporarily altered
Policy B-2: Board Meetings
Limits on large gatherings and social distancing requirements requires limiting in-person contact
Board meetings are controlled by the Education Law Section 260 and Article 7 of the Public Officers’ Law (“Open Meetings Law”), but are temporarily governed by Executive Order 202.12.
As allowed by the EO 202.12, the Board shall meet via teleconference, and the audio shall be simultaneously available at a link on the library’s website, as well as recorded and transcribed.
This adjustment shall be in effect until the expiration of the terms of EO 202.12.
Example: Policy temporarily suspended
Meeting Room Policy allowing use on a reservation basis.
The Library wants to use the Meeting Room but must suspend community use to observe current social distancing requirements and health-oriented practices.
Executive Order # and #, as well as the usual laws governing use of library property.
To ensure observance of [cite EOs] the Meeting Room policy is suspended until two weeks after the last remaining restriction is lifted.
To allow time for cleaning and operational adjustment, the regular policy will go back into effect two weeks after the last remaining restriction is lifted.
Step 4: Contrast the adjustments with your library’s obligations
This is really a second look at the third column- “Law or policy governing change.”
It encourages your leadership—and ideally, your lawyer—to take a deep look at any standing legal obligations, and make sure your temporary adjustment doesn’t run afoul of them.
For instance, in the Meeting Room Policy example, let’s say that, per the policy, the library had a standing, written agreement for the room to be used by a writer’s group on a weekly basis. This might require an extra step in your adjustment to the policy, with some targeted outreach to cancel what might be regarded by the group as a written contract.
SPECIAL NOTE FOR LIBRARIES WITH UNIONS: Step 4 is especially critical if there is a union contract involved. Throughout this time of COVID-19 response, I have seen many examples of situations where a library’s prospective plans have been impacted by CBA provisions for emergency closure or other obligations. I have written about that at length elsewhere, so for now, will simply say: in all of this a library’s union should be an ally and critical stakeholder promoting employee well-being, and hopefully the need for any changes to routine policy and procedure can be approached in that spirit.
Step 5: Diplomacy Check
Technically, this is not a “legal” step, but I can say that in many ways this step is the most important part of avoiding needless legal threats and hostility.
Step 5 involves taking yet another look at the chart, and adding other two columns, covering: “Who will be impacted by this policy change?” and “How can we roll out the change to lessen any negative impact?”
Here is what these columns look like in my imaginary examples:
6. Who will be impacted by this policy change?
7. How can we roll out the change to lessen any negative effects?
Board Meeting Policy Example:
Everyone who relies on library board meetings as a chance to scour the budget and yell at the treasurer about how much was spent on new shelving, even though the purchase followed every bidding step required by state procurement rules.
The library will put up a sign on the front door, and in the usual places where the library sends formal notices about the meetings, saying:
“As you know, our board is meeting via telephone and working to keep our library ready to serve the community! You can hear our meetings at [link] or get a recording at [way]. We’ll have transcripts ready a month after the meeting. Please keep in touch by sending your comments to [NAME] at [ADDRESS].”
Meeting Room Policy Example:
People who really, really just want to see their writing group.
The director will ask [STAFF] to outreach to the regular groups, to see if they need assistance finding alternate resources while we wait to welcome them back.
And with all that legwork done, we can now answer the member’s core questions:
Question 1: What elements would we need to include in this addendum to make it legally enforceable, while not re-writing the entire policy manual?
The elements would be 1) a preamble setting forth the board’s authority, goal and process for the temporary changes; 2) a list identifying the policies that are temporarily suspended or temporarily altered; and 3) an articulation of the replacement policy or temporary changes.
Question 2: What are recommendations for the preamble of such an addendum?
Here is a template for the preamble:
The [NAME] Library was chartered in [YEAR] by the New York Board of Regents, and operates under the authority of that Charter, the New York Education and Not-for-Profit corporation law. In accordance with that authority and in compliance with the Library’s bylaws [OPTIONAL IF UNION AGREEMENT OR OTHER CONTRACTS ALSO GOVERN: and all other applicable obligating documents], to promote the mission of the library, the safety of all it serves and employs, and the needs of the community at this time, the following temporary changes to the following policies are made:
And here is how you link it to the other elements:
[INSERT chart with only columns 1, 4, and 5].
Question 3: What should we make sure to include in the board motion to enact the emergency policy addendum such that it supersedes the standard manual?
Here is template language for a board motion:
WHEREAS the State of New York is currently subject to Executive Orders governing the State’s response to the COVID-19 pandemic; and
WHEREAS the [NAME] Library’s mission is to [INSERT]; and
WHEREAS some of the Executive Orders impact the ability of the Library to fulfill its mission while abiding by its usual policies and procedures; and
[INSERT ONLY IF APPLICABLE] WHEREAS the Library is also subject to the terms of a collective bargaining agreement signed on DATE: and
[INSERT ONLY IF APPLICABLE] WHEREAS the Library is also subject to [variable]; and
WHEREAS the Library has developed temporary adjustments to its usual policies and procedures, with all due consideration of its standing obligations, to aid itself in operating safely and in compliance with the orders, and in period of recovery to follow;
BE IT RESOLVED that the following temporary changes, for the corresponding durations sets forth below, are enacted, effective immediately:
[insert chart with columns 1, 4, and 5]
AND BE IT FURTHER RESOLVED that the full chart setting forth these temporary adjustments shall be posted on the Library’s usual place for posting policies no later than [DATE]; and
AND BE IT FURTHER RESOLVED that the following measures to positively communicate these temporary adjustments shall be taken:
[INSERT measures identified in column 7].
When using these steps, it will be important to remember that an individual library’s response will be informed by not only their unique documents and priorities, but which of New York’s ten regions they are in. This means that what works for one library won’t necessarily work for a similar library in the next county over. Nor should one library be judged by what is being done at another.
And finally—and I have mentioned this in several columns lately, but I will mention it again—attorneys throughout New York State are stepping up to the pro bono plate these days. Now is the time to see if your library can enlist an attorney familiar with municipal, education, employment law, even if it is just to take a fresh, hard look at your final product. If you can’t find that attorney, you can ask for a referral from your local bar association.
By assembling the documents listed in this answer, and identifying your priorities and concerns in the chart, you’ll help that attorney help your library. In addition, I welcome questions from local attorneys who are helping their local libraries pro bono; they can reach me at firstname.lastname@example.org, or my library paralegal Jill at email@example.com.
As the member’s excellent question suggests, the more unified and well-developed the response of libraries can be, the more we can avoid challenges, and focus libraries’ energy on the business of serving the public. Sadly, the need for that energy will be great.
Thank you for giving me the opportunity to answer this very important question.
 Like a writers’ group saying: “Forget it. We’ll just meet at Starbuck’s.”
 For instance, if a patron brought a legal action under ADA, and the library reached a compromise it is legally bound to follow. Most libraries will not be subject to any such restrictions, but I want to ensure they aren’t forgotten.
 In my experience, unless the law mandates that you have one (for instance, certain libraries must, under the Education law, have an internet access policy) suspending a policy is also the way to avoid inviting arguments with people who will try and word-smith your temporary adjustments. As a lawyer, I do enjoy a good quibble, but there’s a time and place for it, and debating when a writer’s group can get back in the community room might not be the best use of energy right now.
 It really sounds like I am picking on this writer’s group! I’m not, we’re a fan of writer’s groups in my law firm (they produce writers, who are part of our client base). I think it’s just that in my mind everyone is, at this mid-May point, is very eager to resume normal social activity. I know I am. Meeting on Zoom is like eating low-fat olive oil.
 This is not a legal tactic tested on the bar exam. I learned this from my mentors at Niagara University, where I served as General Counsel for ten years. When legal strategy was proposed, their first thoughts were always about how it would hit the very real people involved.
 One of my favorite quotes about this phenomenon is from Parks and Recreation: “So what I hear when I am being yelled at is people caring loudly at me.”
 My poor staff. They just got used to New York being divided into nine library council districts, and 23 public library system districts. Val, our keeper of the “library map,” should be getting danger pay.
I need clarification about the IRS regulations on 501c3 organizations. A local political group asked to use our meeting room space for a 'meet the candidates' event, a library trustee thinks this is not compliant with the "The Restriction of Political Campaign Intervention by Section 501(c)(3) Tax-Exempt Organizations" https://www.irs.gov/charities-non-profits/charitable-organizations/the-restriction-of-political-campaign-intervention-by-section-501c3-tax-exempt-organizations
I think our meeting room policy is very out of date and restricting access to the room based on content of the meeting violates 1st amendment rights, as outlined by ALA: http://www.ala.org/advocacy/intfreedom/librarybill/interpretations/meetingrooms
No staff are involved in this event, we have not helped plan it and it was made clear on all the publicity the political group put out that the library is only the venue, we are not hosting, this is not a library program.
This answer comes with many disclaimers, because the legal parameters of room access and rental at chartered libraries in New York is variable territory. In other words: the answer can depend on the library’s “type” (set by its charter), its fundamental rules (found in the bylaws), its IRS status (the “501 (c)(3) mentioned by the member”), its day-to-day rules (controlled by policies), its lease (not all libraries own the space they occupy), and any deed restrictions (although deed restrictions on the basis of speech would bring concerns).
That’s right: education law, not-for-profit corporation law, tax law, real property law…this question has it all!
That being said, the member’s question centers on federal tax law; specifically, the library’s 501(c)(3) status, which not only makes the library tax-exempt, but allows it to receive tax-deductible donations. This status is an important fund-raising asset, and its many conditions (including not engaging in politics) cannot be taken lightly.
Here is what IRS Publication 557, the go-to for creating a tax-exempt entity, has to say about political activity:
If any of the activities (whether or not substantial) of your [501(c)(3)] organization consist of participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for public office, your organization won't qualify for tax-exempt status under section 501(c)(3). Such participation or intervention includes the publishing or distributing of statements. Whether your organization is participating or intervening, directly or indirectly, in any political campaign on behalf of (or in opposition to) any candidate for public office depends upon all of the facts and circumstances of each case. Certain voter education activities or public forums conducted in a nonpartisan manner may not be prohibited political activity under section 501(c) (3), while other so-called voter education activities may be prohibited. [emphasis added]
Like many guides from taxing agencies, this one is superficially helpful (I put that part in bold), but upon examination, employs a disclaim that gives very little concrete guidance (I underlined that part). So, what’s a library with a spare room to do?
As alluded to in both the member’s question and my opening paragraph, this question doesn’t turn solely on the IRS. Any 501(c)(3) library that rents or allows free use of space should have a robust “Facility Use Policy” that considers not only IRS regulations, but safety, equal access, and operational priorities (requiring users to clean up after their meeting, to not be noisy, to respect the space). For a library in a municipally-owned building, care must be taken to ensure use fees are applied in a way that does not violation the NYS Constitution. And for a library that rents, the Facility Use Policy must harmonize with the lease.
But the member’s question is about 501(c)(3). So, having established that this consideration is but one of many when giving access to or renting space, here are the three things to consider when a 501(c)(3) rents or gives access to space:
1) Rental income needs to be a very small percentage of the library’s revenue.
Section 501(c)(3) requires that income from renting space can’t outweigh donations and other sources of income related to the library’s tax-exempt purpose. This is something to discuss with the library’s accountant; while rental income isn’t barred, it can bring funding ration and tax consequences that warrant the attention of a professional.
2) The use of the space can’t “inure” to the benefit of any one company or individual.
Section 501(c)(3) also requires that a qualifying organization’s resources can’t directly benefit any one person or entity more than the general public. For example, free use of the spare room by a person conducting a stained-glass workshop with an admission fee (even a nominal one), can be considered an “inurement.” 
3) As raised by the member’s trustee, the use of the space cannot violate the bar on lobbying (influencing legislation) and political activity (supporting a particular candidate for office).
And as reviewed, Section 501(c)(3) bars political activity (as further defined in the excerpt from 557, above).
“Ask the Lawyer,” has had some fairly large answers, but I don’t have space to address every occurrence that could run afoul of the bar on “political activity.” But what about renting space, on the same terms as to any other entity, to an event like the one described by the member?
Here is what the IRS has to say:
Can a section 501(c)(3) organization conduct business activities with a candidate for public office?
A business activity such as selling or renting of mailing lists, the leasing of office space or the acceptance of paid political advertising may constitute prohibited political campaign activity. Some factors to consider in determining whether an organization is engaged in prohibited political activity campaign include:
a. Whether the good, service or facility is available to candidates in the same election on an equal basis,
b. Whether the good, service or facility is available only to candidates and not to the general public,
c. Whether the fees charged to candidates are at the organization’s customary and usual rates, and
d. Whether the activity is an ongoing activity of the organization or whether it is conducted only for a particular candidate.
When developing a Facility Use Policy, if a library is a 501(c)(3) charitable organization, and wishes to be able to rent space to (among others) political organizations for event, the above-listed factors should be built right into the policy.
Here is some sample language (some of it will sound familiar):
As a 501(c)(3) organization, the NAME library does not participate or intervene, directly or indirectly, in any political campaign on behalf of (or in opposition to) any candidate for public office depends upon all of the facts and circumstances of each case. Therefore, the use of space in our facility by political organizations or for partisan political events is only available on the same rental terms as for the general public, and is subject to a rental fee that is charged equally to any political group or other individual or group. NOTE: Certain voter education activities or public forums conducted in a nonpartisan manner may qualify for a fee waiver, just as do other free and open events conducted by a charitable entity for the benefit of the public.
So, what about the member’s scenario? In the absence of a spot-on facility use policy, I suggest the following process:
If the library’s past practices make following those three steps too blurry, it is best to take a pass on this precise event, and take the time to develop an up-to-date and thorough Facility Use Policy that considers the types of uses the library will allow, and how and when it will charge for them. There are many good models out there to draw inspiration from, but before the board passes such a policy, it would be good to have it reviewed by a lawyer (who has ready the charter, bylaws, other policies, lease, deed, and any other relevant documents).
The member’s library is fortunate to have leadership that is thinking about both the first amendment and safeguarding the organization’s tax status. Good work. No matter what the final decision, awareness and commitment to these values serves your community.
 The member has stated their policy might not be suited to addressing this situation. We’ll tackle that in a bit.
 If this just caused a stab of panic because your library let’s an instructor host a “Yoga for Seniors” class for a minimum fee to the instructor, don’t worry, this event can happen…you just have to do it right.